Constitutional Law

More on injunction against park CCW

Dave Workman has thoughts and links.

Having read the opinion (linked in a comment to the prior post), I can see how this happened. All agencies have to comply with NEPA, the National Enviro Policy Act. NEPA isn't, as we bureaucrats called it, an action-forcing statute, it doesn't dictate a result. It requires that all agency actions be analyzed for environmental effects in a certain way.

Since it applies to ALL agency actions of any type, the lowest level of analysis, in fact non-analysis, are the categorical exemptions. That's where the agency lists all actions where enviro impact is virtually impossible. Hiring and firing. Repairs of existing structures. Issuing legal opinions. Maybe building shed-size storage areas. Stuff that just doesn't affect the environment.

Probably because this was being raced thru in the last days of the Bush Admin., that's all that Interior did in the way of NEPA. Just applied a categorical. They didn't put together the usual environmental assessment.

So they got nailed. You can see it coming. NEPA requires analysis of environmental impact, both good and bad. Well, if the rule does good things -- allows people to defend themselves against criminals and predatory wildlife -- that's a good impact on the human environment. Which means the categorical exemption is inapplicable.

It was a rushed rule, perhaps prepared by agency personnel who didn't care, or might even enjoy it if it got struck down. There might have been a chance at winning on standing to sue (and I note from the opinion the government didn't argue that!).

Full post as published by Of Arms and the Law on March 20, 2009 (boomark / email).