Red Lodge Clearinghouse

Presidential proclamations are very similar to executive orders issued by the president, but are generally used for different purposes.  Presidential Proclamations, unlike executive orders, are used for ceremonial or broad policy statements.  Like executive orders, presidential proclamations can carry the force of law if issued pursuant to statute.  Otherwise they can serve either purely symbolic purposes or can serve as a statement of future executive policy.

All presidential proclamations are published in the Federal Register with Executive Orders.

Agency Regulations

Because Congress does not have enough resources to regulate everything there is to regulate, it creates executive branch agencies and gives them power to make rules to carry out the purposes of legislation. These rules are called "regulations" and they are enforceable as law. Regulations are created through a public rulemaking process, provided in the Administrative Procedures Act. The rulemaking process requires that the agency give notice of the new rule to the public by publishing proposed and final rulemakings in the Federal Register. After a regulation is finalized, it is published in the Code of Federal Regulations.

Agency Directives

Most agencies have internal handbooks, manuals or other documents (directives, memoranda, bulletins) that contain detailed guidelines for conducting agency business. Some of these are published in the Federal Register, but for many of these documents, the agencies' web sites are the best places to look.

U.S. Department of Agriculture, Forest Service

The Forest Service's manuals and handbooks include the agency's policies, practices and procedures. Both the manuals and handbooks provide national level, regional level and forest specific guidance. New or revised continuing direction is issued by amendment; short-term direction is issued by interim directive; and direction supplementing that issued by an external or higher level is issued by supplement.

• The Forest Service Manual (FSM) contains legal authorities, objectives, policies, responsibilities, instructions, and guidance needed on a continuing basis by Forest Service employees.
• Forest Service Handbooks (FSH) are the principal source of specialized guidance and instruction for carrying out the direction issued in the FSM.

Department of the Interior, Bureau of Land Management

The BLM uses a variety of directives to guide its work. Access to these directives and other documents are available through the BLM Electronic Reading RoomAn overview of BLM's directives is also available on the agency website.

• Manuals provide detailed information to agency employees on how to implement federal legislation.
• Handbooks elaborate in more detail on the procedures and information provided in manuals.
• Instruction Memoranda provide new policy or procedural instructions.
• Information Bulletins are used to disseminate information of interest to Bureau employees. They do not contain BLM policy, directive, or instructional material.

Code of Federal Regulations (CFR)

The Code of Federal Regulations (CFR) is a collection of agency regulations that were published as final rules in the Federal Register. When a proposed or final rule is published in the Federal Register, it indicates the title and section of the CFR that the new rule will create or modify. The CFR is organized into fifty titles, and each title covers a specific subject.

Administrative Law Decisions

Many natural resource and public lands disputes must be appealed through an administrative appeals process before being taken to court for judicial review. For more information on appeals processes, see

• Bureau of Land Management Appeals
• Forest Service Appeals

Department of the Interior

The Interior Board of Land Appeals (IBLA) is part of the Office of Hearings and Appeals, Office of the Secretary of the Department of the Interior (DOI), and is specifically authorized to review decisions of DOI agencies and DOI administrative law judges. In this capacity, the IBLA makes important decisions on resources law and operation of the agencies that govern public lands. Appeals from the Board are heard by the Federal District Court in the state where the dispute arose. Appeals from the U.S. District Court then head to the U.S. Court of Appeals and may eventually be appealed to the U.S. Supreme Court.

U.S. Department of Agriculture, Forest Service

Certain decisions by the U.S. Forest Service can be appealed to a higher agency authority for review. Special use permits, mining locations, mineral rights, grazing and livestock permits and other environmental decisions may be appealed. Several statutes, including the National Environmental Policy Act (NEPA) are used to guide the Forest Service when deciding an appeal. Personnel at a Regional Office review decisions made by a particular national forest. The Chief's Office in Washington, D.C., reviews appeals of decision by the Regional Office. Typically, all administrative processes must be exhausted before a person can bring a court action (litigation) to overturn an agency decision.

Controversies

Who makes the laws that govern the lands and resources of the West? Well, of course, we, the people of the United States, do through our legislative and executive branches of government. First, we elect our representatives in Congress. These men and women introduce bills to create new laws and to amend existing law. After listening to their constituents, the media and their colleagues in the halls of Congress, they pass bills to protect our lands and interests. When signed by the President, these bills become law to be administered by executive branch agencies. The executive branch agencies write regulations to implement these laws using the notice and comment rulemaking process required by the Administrative Procedures Act. Top managers of these agencies are appointed by the President and confirmed by the Senate; their duties are to assure that regulations are consistent with applicable law, that one agency's regulations do not conflict with those of another, and that the laws are faithfully administered. When preparing major regulation, the agencies consult with Federal agencies that administer other environmental laws like the Endangered Species Act and listen to the citizenry in the public process of preparing an environmental impact statement under the National Environmental Policy Act (NEPA).

Well, almost. Through a few legal loopholes, questionable stretches of the rules, and outright violation of law, our lawmaking process appears to be losing some of its transparency and balance. A few recent examples follow.

Appropriation Bill Riders

Most of our law is created through a democratic process including introduction of a public bill in both the House of Representatives and the Senate, referral to appropriate committees or subcommittees where the bill is given its most intensive consideration, public hearings, markup by the committee, preparation of committee reports, consideration of the bill by the full chamber with opportunity for debate and amendments, and the final vote. While the rules and distribution of authority of the two chambers has traditionally favored hearing and passage of bills supported by the majority political party, one increasingly popular technique for passing substantive legislation seems most contrary to the democratic process — passage of law by a "rider" on an appropriation bill.

For most bills in Congress, there is no requirement that proposed amendments be germane to the subject matter of the bill, resulting in totally unrelated matters being joined in one bill. The exception to this is the case of a general appropriation (funding) bill or where "cloture" has been invoked. Under congressional rules, a "rider", an amendment inserting substantive legislation to an appropriation bill, is generally prohibited. Nevertheless, substantive environmental law is often made, and more often attempted, by attaching new environmental restrictions or, more often, eliminating environmental protections, through amendments to appropriation bills. These riders sometimes give agencies discretion to ignore environmental and natural resource statutes, while denying the public the ability to challenge the actions through administrative and judicial channels. Recent examples of riders include stewardship contracting, the salvage timber rider, and proposals to reauthorize the Secure Rural Schools and PILOT programs and to delay potential oil and gas leasing of the Roan Plateau in Colorado.

Most egregious flaunting of the democratic process are amendments to emergency appropriation bills — for example, the emergency appropriation bill following the 1995 Oklahoma City federal building bombing (which included the salvage timber rider) and the Iraq war emergency appropriation bill (including the PILT and Secure Rural Schools rider) which are more likely to be passed without concern for the presence of riders and usually not as likely to be vetoed by the President. Obviously, riders can foster legislation from both sides of the aisle, from both sides of the community, from both sides of the environment. It isn't necessarily the content that is the problem, it is the underhanded process.

For more on riders, see "The Congressional Appropriations Process: An Introduction."

For several examples of anti-environmental riders, see "Environment and the 106th Congress" on the NRDC website.

Notice and Comment, Consultation and Compliance

Various environmental and natural resources laws explicitly or implicitly give Federal agencies the authority to write regulations to implement the laws. Agencies promulgate these regulations or "rules" through a notice and comment process outlined in the Administrative Procedures Act. These rules are designed to give the public an opportunity to help shape the rules that will ultimately govern their actions and protect their environment. In addition, agencies are required by NEPAconsult

Agencies do not, however, always follow the rules. Following long court battles, Federal courts finally stopped controversial Bush administration attempts to forgo EISs and Section 7 consultations in development of their State Petitioning Roadless Rule and Forest Service planning rules.

For more information on court actions involving the Roadless Rule, see "Judge reinstates Clinton-era roadless rule." The Forest Service has begun approving state-specific roadless rules, e.g. final rule issued in October of 2008 for Idaho.

For more information on March 2007 court rulings on Forest Service planning, see "Judge forbids Forest Service from using 2005 planning regs."

Recess Appointments

Under Article 2 of the U.S. Constitution, the President has power to appoint executive branch administrators with the advice and consent of the Senate. This constitutional provision allows the President to appoint agencies' top managers to assure faithful administration of the law while implementing his domestic agenda. At the same time, our legislative representatives in the Senate oversee the quality of major administrative appointments. At a time when Congress had relatively short sessions and long recesses, the same section of the Constitution gave the President power to make appointments during a recess. These appointments expire at the end of the next session of Congress.

Throughout the nation's history, Presidents have used this power for political purposes, waiting to make appointments during a recess if the candidate is controversial and not likely to be confirmed by the Senate. President Bush, for example, appointed Susan Dudley in early 2007 to the Office of Regulatory and Information Affairs (OIRA)(see sidebox), with an intrasession recess appointment (an appointment made during a recess within a session). The Senate had refused to vote on her nomination in the previous session of Congress. Environmental groups and others oppose the appointment arguing that Dudley has an anti-regulatory bias.

For more information on recess appointments, see "Recess Appointments, Frequently Asked Questions"

For more information on the Dudley appointment, see "Bush bypasses Senate for controversial recess appointment."