Archives for September 2017

CoA Institute Urges Removal of Anti-Transparency Provisions in Senate Bill

On August 16, 2017, Cause of Action Institute (“CoA Institute”) joined other government transparency advocates in sending a letter to Senator John Cornyn objecting to the inclusion of provisions that exempt the implementation of the Building America’s Trust Act [1] (“the Act”) from the requirements of the Administrative Procedure Act (“APA”) and the Paperwork Reduction Act.

In particular, Section 702 of the Building America’s Trust Act specifically exempts any agency actions implementing the Act from “publication in the Federal Register[.]” This exclusion will deprive the American people from learning when provisions of the Act are implemented by federal agencies.  This unfortunate provision runs directly counter to the APA’s publication requirement which serves as an essential hallmark of administrative law and promotes transparent and accountable government.  Americans’ input into the rulemaking process should not be so easily cast aside.  Section 702 relies on the need to ease “the expeditious implementation of this Act” as the justification for the APA exemption.  But the APA already allows agencies to exempt rules from publication if good cause is shown.[2]  To ensure a transparent and accountable government, agencies implementing the Act should have to demonstrate their good cause for avoiding the APA’s requirements instead of receiving a rubberstamp on binding regulations.

CoA Institute believes that Section 702 should be removed from the Building America’s Trust Act because the APA already contains a good cause exemption that should satisfy the Act’s policy goals without adding new exemptions from the APA’s procedures.

Travis Millsaps is counsel at Cause of Action Institute.

[1] Building America’s Trust Act, S. 1757, 115th Cong. (2017).

[2] 5 U.S.C. § 553.

Trump’s monument review is as secretive as Obama’s designations

Trump’s monument review is as secretive as Obama’s designations

By Kara McKenna, counsel at Cause of Action Institute

Presidential use of the Antiquities Act is ripe for abuse, as major decisions impacting vast public lands, natural resources, property rights, livelihoods and private industry are left to the sole discretion of the president. After such a unilateral designation, the president does not need to substantiate his decision in any meaningful way, beyond the use of a few magic words on the face of the proclamation.

It seemed like a positive step when President Trump in April issued an executive order seeking public input for a review of national monument designations over the last two decades. But it now appears that any hope for additional transparency may have been premature. Read the full article at The Hill