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Citizens for Constitutional Integrity v. United States.

No. 21-1317. 1/10/2023. D.Colo. Judge Hartz. Congressional Review Act—US Congress—Senate Cloture Rule—Statutory Jurisdiction—Standing—Constitutional Challenges

January 9, 2023


The Department of the Interior, Office of Surface Mining Reclamation and Enforcement (the Office) promulgated the Stream Protection Rule (the Rule) in the latter days of the Obama Administration. The Rule heightened requirements for regulatory approval of mining permit applications. Within a month of the Rule’s effective date of January 19, 2017, Congress had passed a joint resolution disapproving the Rule and President Trump had signed the joint resolution into law. Plaintiffs Citizens for Constitutional Integrity and Southwest Advocates, Inc. filed suit in the US District Court for the District of Colorado against the federal government and several Department of the Interior officials in their official capacities (collectively, defendants). They alleged that the Rule’s repeal enabled approval of a 950.55-acre expansion of the King II Coal Mine (the Mine) in Colorado. Plaintiffs sought (1) a declaration that the Congressional Review Act, 5 USC §§ 801 to 808 (the CRA), and Senate Rule XXII (the Cloture Rule) are unconstitutional, so the Rule is therefore valid and enforceable; (2) vacation of the approval of the Mine permit modification and an injunction against expanded mining activities that the modification authorized; and (3) attorney fees. The district court granted defendants’ motion to dismiss for failure to state a claim.

On appeal, plaintiffs asserted that the CRA is facially unconstitutional on separation of powers, equal protection, and substantive due process grounds, so the joint resolution disapproving the Rule was invalid, the Rule must be reinstated, and the approval of the Mine’s expansion must be vacated. The Tenth Circuit first determined that it had statutory jurisdiction to hear this case because, notwithstanding the CRA § 805 jurisdiction-stripping provision, the CRA does not explicitly bar judicial review of constitutional claims. The Tenth Circuit then determined that Southwest Advocates could challenge the constitutionality of the CRA because protecting the environment is one of its core purposes; the relief it seeks does not require the participation of individual members; and one member, who lives on land near the Mine, has standing in her own right. However, as to plaintiffs’ arguments concerning the constitutionality of the Cloture Rule—a Senate rule requiring affirmative votes of three-fifths of the senators to end debate—Southwest Advocates lacks standing because it has not adequately alleged how the environmental harm of which it complains would be redressed by a ruling that the Cloture Rule is unconstitutional; and Citizens for Constitutional Integrity lacks standing because it has not alleged a judicially cognizable injury in fact. Further, the prerogative to change the Senate’s rules of debate belongs to the Senate alone. Because neither plaintiff has standing to challenge the Cloture Rule, the Tenth Circuit did not reach the merits of plaintiffs’ Cloture Rule arguments.

On the merits, among other things, the CRA creates an expedited process through which Congress can repeal rules promulgated by federal agencies. The CRA, which applies only to recently adopted regulations, allows Congress generally 60 days from when a final rule is reported to Congress to enact a joint resolution of disapproval. This permits Congress to repeal last-minute regulations promulgated by an outgoing administration. A rule does not take effect or continue if Congress enacts a joint resolution of disapproval, which goes to the president for approval, and a presidential veto can be overridden like all legislation. A joint resolution of disapproval adopted under the CRA is authorized by the same provisions of the Constitution that authorize all legislation. As to the separation of powers claim, Congress complied with the fundamental constitutional requirements of bicameralism and presentment (submission to the president for approval). As to the equal protection claim, plaintiffs cannot coherently describe a class of discriminated-against persons to which their members belong. As to the substantive due process claim, a party challenging a law under rational basis review must “negative every conceivable basis which might support it,” which plaintiffs failed to do. Accordingly, the CRA is compatible with the US Constitution governing how Congress can pass laws and survives the constitutional challenges.

The order was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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