House Transportation and Infrastructure Committee Chairman Sam Graves (R-Mo.) and Oversight and Accountability Committee Chairman James Comer (R-Ky.) have sent identical letters to Transportation Secretary Pete Buttigieg, Homeland Security Secretary Alejandro Mayorkas, and EPA Administrator Michael Regan “requesting information about any agency rules, actions, or decisions impacted by the Supreme Court’s recent ruling in Loper Bright v. Raimondo, which overturned the 1984 Chevron v. Natural Resources Defense Council (Chevron) decision.” This amounts to nothing more than a waste of time, political theater. If these guys really want useful information, they’ll reach out to attorneys at railroad legal departments and independent law firms experienced in such matters. But that would make sense, right?
“Unsurprisingly, Chevron unleashed decades of successively broader, more costly and more invasive assertions of agency power over citizens’ lives, liberty and property, as agencies adopted expansive interpretations of assertedly ambiguous statutes, demanding courts defer to them,” Graves and Comer wrote in their letters (download below). “Perhaps no Administration has gone as far as President Biden’s to found sweeping and intrusive agency dictates on such questionable assertions of agency authority. The Biden Administration has promulgated far more major rules, imposing far more costs and paperwork burdens, than either of its recent predecessor Administrations. Many of these rules—such as those promulgated to impose President Biden’s climate, energy and Environment, Social and Governance (ESG) agenda—have been based on aggressive interpretations of statutes enacted by Congress years and even decades ago, before many issues against which the Biden Administration has sought to deploy them were even imagined.”
Graves and Comer requested that Buttigieg, Mayorkas and Regan “send any information about legislative rules proposed or promulgated, agency adjudications initiated or completed, enforcement actions brought by agencies, and agency interpretive rules proposed or issued since Jan. 20, 2021 to help [our] committees conduct oversight of these agencies.” They also requested information about any judicial decisions in cases to which agencies have been a party since the 1984 Chevron decision be provided “by no later than July 23, 2024.”
Again, these guys are barking up the wrong tree.
As well, do Graves and Comer understand that the letter to DOT Secretary Buttigieg affects only Executive Branch agencies such as the Federal Railroad Administration (FRA) and Federal Transit Administration (FTA) and not the independent Surface Transportation Board (STB), National Mediation Board (NMB) and National Transportation Safety Board (NTSB)?
“Former STB Chairperson and Democrat Martin J. Oberman emphasized the STB’s independence from the Executive Branch in July 2021 in response to an Executive Order of Democratic President Biden that the STB finalize a rulemaking on competitive access,” comments Railway Age Capitol Hill Contributing Editor Frank N. Wilner. “Oberman wrote, ‘[W]hile underscoring that the STB is an independent agency and that maintaining its independence is vital, I welcome the nationwide policy contained in this new Executive Order.’
“Should these House Republican leaders make a similar request of current Democratic Chairperson Robert Primus, as they did of DOT, it will be interesting to see how he complies, as the underlying intent of the request is to limit the decision-making independence of all federal administrative agencies, with interpretation of statutes transferred from these agencies to federal courts. At the same time, the Transportation and Infrastructure Committee, chaired by Graves, has oversight of the STB as well as subpoena power.
“Actually, there is no mystery as to the final rulings, those pending or even those in the wings that are vulnerable to challenge under the Loper-Bright SCOTUS ruling. The most accurate source—and even perhaps a better source than the STB—are railroad law departments, which will be bringing the federal court challenges aimed at nullifying those decisions. Yes, this is all political theater.”
