In 1946, the U.S. Congress and President Harry Truman enacted the Administrative Procedures Act as a means of ensuring that the federal government enacted policies and regulations with transparency and based on the best information available to agency officials.
It was landmark legislation that was designed to ensure not only that the public had a voice in federal decision-making, but that its voice wasn’t drowned out by special interests or the whims or personal biases of federal officials.
The act also provided the public new legal avenues for challenging federal decisions when they were made without sufficient basis in fact or logic. When federal officials made decisions arbitrarily, the Administrative Procedures Act gave the public clear statutory ability to challenge those decisions in court.
Two recent actions by the Trump administration demonstrate the consequences of arbitrary decision-making and show how the gains this country made in the past eighty years are being undermined today by the Trump administration. As we reported last week, the Trump administration suddenly and unexpectedly reversed itself on whether to begin permitting for the Pebble Mine in southwestern Alaska. In July, its Army Corps of Engineers issued a determination that concluded the mine would have little or no impact on the sockeye salmon population in Bristol Bay, located about 100 miles downstream of the proposed copper and gold mine.
We need not weigh in on the merits of the Army Corps decision, since its merits, either way, were no match for the arbitrary nature of so much decision-making by President Trump. As has now been widely reported, the administration reversed itself 180 degrees after Donald Trump Jr., the president’s eldest son, celebrity Fox News talking head Tucker Carlson, and BassPro Shops founder Johnny Morris, came out publicly in opposition to the mine. Turns out, Trump Jr. likes to fish salmon in Bristol Bay.
The reversal is obviously good news for the future of the Bristol Bay fishery, but it reveals how decisions in the Trump administration are made based on the interests of whomever has the president’s ear at the moment. This is exactly the approach to governance that the Administrative Procedures Act was designed to prevent. In the case of the Pebble Mine, the president may have come down on the side of the salmon— but only because of the influence of a handful of politically-connected individuals.
Closer to home, the president took the exact opposite position on the proposed Twin Metals mine, which the U.S. Forest Service has already determined poses a grave threat to the Boundary Waters, the nation’s most popular wilderness area. Yet the administration forced the agency to not only go along with renewal of a lease that the Forest Service opposed, but to relinquish its right to object to future renewals of the lease, in perpetuity.
What was the basis for the Forest Service’s about face on Twin Metals? Who knows? The Forest Service certainly hasn’t offered an explanation, which strongly suggests it was based on strong-arming from the White House and, possibly, the administration’s friends in Congress.
These are two examples, but there are many, many more in this administration. President Trump has taken a shellacking in the courts over the past three and a half years, and not because of liberal judges. Many Republican-appointed judges have reversed the administration as well, because time after time, this administration has made arbitrary decisions based on nothing but the coarsest political calculation or the commentary of a talking head on Fox News.
In the case of Twin Metals, the law is ignored and the mineral leases are renewed not because the administration has made a reasoned case for a change in policy, and certainly not because the administration believes, or even cares, whether the mine can operate without impacting the Boundary Waters. The decision is made only because the president wants to win votes on the Iron Range.
You can run a country this way, but not well and not for long, because every organization, including mining companies, need some sense of predictability. When a country makes decisions based on the whims of an unstable president, businesses lack the stability they need. What happens if a Fox News celebrity visits the Boundary Waters and suddenly comes out on television in favor of its protection? The Twin Metals proposal could vanish with a tweet.
Don’t believe it? Just ask the folks behind the Pebble Mine.
The Administrative Procedures Act provided that predictability because it guaranteed that government decisions were based on a factual foundation. The Trump administration is undermining that foundation, perhaps unwittingly, every single day.