Examining the Bush Administration's Record of Rulemaking Reversals in Environmental and Natural Resources Law - Does NEPA's “Hard Look” Give Teeth to State Farm's “Reasoned Analysis”? -

Environmental and natural resources policy can shift dramatically depending on the administration in office. This Article explores why the Bush Administration was unable to articulate a sufficient rationale to reverse some of the polices of the previous administration by analyzing several cases involving rulemaking reversals in the context of grazing, forestry, snowmobile recreation, and the Roadless Rule. In Motor Vehicle Manufacturers’ Association v. State Farm Mutual Automobile Insurance Co., the Supreme Court held that recession of a rule is reviewed under the same standard as when an agency engages in a rulemaking. However, the agency must still supply a “reasoned analysis” for the change in policy. Based on the cases discussed, State Farm’s “reasoned analysis” appears contextual―the more analysis and data in the record in the first rulemaking, the harder it is for the agency to reverse course both institutionally (because the agency employees studying the issue have to come to opposite conclusions often with the same data) and legally (because federal courts will take a “hard look” at the agency’s prior analysis). The National Environmental Policy Act (NEPA) gives teeth to State Farm in the environmental and natural resources context because rulemakings are often “major federal actions significantly affecting the quality of the human environment,” requiring a detailed Environmental Impact Statement (EIS). The data from an EIS during the initial rulemaking can then serve as a legal barrier to the next administration’s attempt to reverse a prior rule because State Farm’s “reasoned analysis” requires a discussion of the previous administration’s data and conclusions.