Finding Federal Law: Free-access Internet Resources
The United States has a rich body of Federal environmental and natural resource law that has developed over the years through all three branches of government:
- Legislative Branch — laws passed by Congress
- Judicial Branch — cases decided by the courts
- Executive Branch — Executive orders and Federal agency regulations or rules.
Knowing the law is essential for participating in management of federal lands. Having easy access to that knowledge helps everyone to participate more effectively in collaborative processes.
Law used to be somewhat of a mystery because legal information was only available at the specialty law libraries and from expensive on-line services. Today, many of the laws, regulations and other federal policy documents that can help individuals understand issues and procedures are available on the internet. Some of these are easier to access than others, but if you know where to look, most everything is available.
Many useful guides are available to help understand how federal laws and regulations are developed and implemented:
- American Forests' Forest Policy Center's The Federal Budget Process and The Federal Appropriations Process provide useful access to evolving laws and regulations.
- The Environmental Protection Agency publishes a semiannual regulatory agenda online (the e-Agenda) at www.reginfo.gov to update the public about regulations and major policies currently under development, reviews of existing regulations and major policies, and rules and major policymakings completed or canceled since the last agenda. See also the EPA's "Rulemaking Gateway," for the status of priority EPA regulations.
Other sources illustrate how federal laws affect various public resources. For example, see the discussion of "United States Laws and Policies Protecting Wildlife" in the 2009 State of the Rockies Report Card, produced by Colorado College.
In many instances, legal rules that apply to collaborative conservation initiatives relate to broader notions of "good government" and public participation than to specific natural resources or environmental protection. See the policy report titled "The Legal Framework for Cooperative Conservation" (Univ. Mont. Public Policy Research Inst., 2006) for an overview of these rules and how they influence the institutions governing public resource management. See also President Obama's memo titled "Transparency and Open Government," which proclaims that “Executive departments and agencies should use innovative tools, methods, and systems to cooperate among themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector.”
Click here to download pdf report.
A Guide to Federal Laws and Regulations
Most federal laws start out as bills introduced in a session of Congress. These bills are assigned tracking numbers depending on where they are first introduced. Senate bills originate in the Senate and are designated "S" followed by a number (for example S 507); House bills are originally introduced in the House of Representatives and are designated HR followed by a number (for example, HR 1904). There may be separate Senate and House bills dealing with an issue, or one or the other body of Congress may just use the other chamber's bill. If both the Senate and House pass a bill and it is signed by the President (or vetoed by the President and re-passed by a two-thirds vote of both houses), the bill becomes a "public law" and is given a new number (for example P.L. 94-579). The first part of this number represents the number of the Congress; the second part of the number is simply a consecutive number assigned to the bill by Congress.
For example, the Federal Land Policy and Management Act (FLPMA) was introduced in 1974 in the 94th Congress as S 507. It became P.L. 94-579, the 579th bill signed into law from the 94th Congress. Stewardship Contracting became law through a rider to the FY 02-03 Consolidated Appropriations Bill (P.L. 108-7).
The standard process for creating "authorizing" legislation includes consideration of a bill by a committee, amendments, hearings, debates and reports. Appropriations bills, also called "spending" bills, are developed in a similar process, but must originate in the House of Representatives and must be passed each year in order to fund the Federal government.
Outside the standard processes for authorizing and appropriating legislation, important natural resources legislation can be slipped into a much larger, totally unrelated piece of authorizing legislation by an amendment, or into an appropriation bill by a "rider." Congress can also control the administration's actions by specifically cutting off funding in an appropriation bill for a particular program or agency action.
Congress can preclude the administration from developing or implementing controversial programs or policies — for example, developing rulemakings that will substantially change endangered species law — by specifically precluding the appropriate agency from spending money on the activity.
For more information, see "House appropriators urged to block ESA changes, drilling on public lands" Land Letter, May 3, 2007.
For more detail on every aspect of the legislative process, see "How Laws are Made."
Free, Online Sources for Bills and Public Laws
The best place to search for bills and public laws is Thomas, the official website of the Library of Congress. Bills of the current Congress and several previous years as well as public laws from 1973 (93rd Congress) to the present are currently available. The Thomas site will give you the law as it was originally passed — essentially the final version of the House or Senate bill. It will not include any subsequent amendments to that law. For some of the earlier years, Thomas may only have a summary of the law rather than the full text. For copies of laws that have been amended through the years, see the appropriate section of the RLCH website, or go to a specialty site (like the web site of the agency that implements the law) or to the U.S. Code (see below).
- Title 43, Public Land Law, includes FLPMA from section 1701 to 1785 (43 USC sections 1701 to 1785)
- Title 16, Conservation, includes laws related to the Park Service and the National Forest Management Act.
Once a law is passed, it is printed in the U.S. Code (USC) — the official compilation of federal statutes (laws). In the USC, statutes are organized, indexed and published in "titles." Each title covers a specific subject matter. The purpose of the USC is to present laws in a concise and usable form. So the USC is updated when a law is amended or repealed. The current version of the USC includes only laws that are currently in effect. Unfortunately — and this can be a frustrating problem — the official U.S. Code is not updated annually. For example, the most recent changes to the stewardship contracting legislation do not appear in the online USC. The most recent official version of the USC is from 2000. Some of the online services described here have unofficial updates from as recently as 2002, but many of the newest changes in law are not available through these free, online services. For the most up-to-date version, you have to look at the U.S. Code Annotated (USCA), either at a law library or through an expensive, private on-line service (e.g., WESTLAW or LEXIS).
Free, Online Sources for the U.S. Code:
- Cornell University Legal Information Institute (LII)
- GPO Access
- U.S. House of Representatives
Several web sites provide free access to the USC. One of the easiest to use is theCornell University Legal Information Institute (LII) site.
You can access specific sections of a law searching by:
- Code title and section (for example 43 USC 1701),
- Popular Name of the law ("Federal Land Policy and Management Act"), and
- Keyword search ("advisory committee").
Free, Online Sources for Court Decisions:
While statutes and other materials contain "the law," the courts are charged with interpreting the law. Court cases are a useful way to see how a law has been interpreted, and are important sources of "precedent." Once a court decides that a law is interpreted a certain way, other courts will tend to follow this interpretation. This allows individuals, agencies, and companies to rely on a court decision and to shape their affairs around a stable body of decisions. "Lower" courts (Federal District courts) are required to follow a decision on a particular issue by a "higher" court (U.S. Court of Appeals) in their same circuit (see map of Circuits, below). The U.S. Supreme Court is our highest judicial authority, and each decision made by this body binds all other courts to follow their interpretation of a law. Typically, the U.S. Supreme Court hears and decides cases where there is a difference of opinion between the Courts of Appeal for different circuits.
In recent years, more and more court decisions have made their way into free internet databases. A useful rule of thumb is that the more recent decision, the more likely it will be available for free on the internet. Beyond that, coverage is wildly inconsistent and depends on each particular court, but more on-line cases are available from the higher courts (Supreme Court, Courts of Appeal, State Supreme Courts).
To access Emory Law School's directory of federal courts, click on the map above.
Executive orders issued by the President are usually intended to direct
or guide government agencies and officials. There is no law defining the
term. Some orders are binding; others are not. When issued pursuant to a
statutory mandate or congressional delegation, these orders are binding
as law. Otherwise, they serve more as a general guide to the executive
For example, President Bush amended a 1993 Clinton EO to require political appointee oversight at "each stage of the regulatory process."
Since 1936, all orders have been published in the Federal Register, which is the federal government's official daily "newspaper."
The online Federal Register archives contain information on Executive orders dating from 1937. The full text of executive orders is available for the more recent orders.
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.
Regulations.gov is a U.S. Government web site that makes it easier for public citizens to participate in federal rulemaking. On this site, you can find and review federal documents that are open for comment and published in the Federal Register. The site makes it easy to submit comments electronically.
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.
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.
Agency Directives of Interest
- FSH 1909.12 — Land and Resource Management Planning Handbook
- FSM 1950 — Environmental Policy and Procedures (NEPA implementation)
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.
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 Room. An 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.
A few BLM directives of interest include:
- M-1601 — Land Use Planning Manual
- H-1601 — Land Use Planning Handbook
- IM-2007-118 — Oil and gas program enforcement policy
Free, Online Sources for the 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.
CFR Titles of particular interest:
- Title 30: Mineral Resources
- Title 36: Parks, Forest and Public Property
- Title 40: Protection of Environment
- Title 43: Public Lands: Interior
- Title 50: Wildlife and Fisheries
Free, online Sources for Administrative 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
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.
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.
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.
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.
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.
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.
Office of Regulatory and Information Affairs (OIRA)
OIRA is the top regulatory post of the Office of Management and Budget. Congress established the OIRA in the 1980 paperwork Reduction Act, but its purpose, tasks and process were fleshed out by Clinton in Executive Order 12866. The ORIA coordinates review of agency rulemaking to ensure that regulations are:
- consistent with applicable law and the President's priorities, and that
- decisions made by one agency do not conflict with the policies or actions taken or planned by another agency.
In early 2007, President Bush amended the Clinton executive order requiring that each agency install a presidential appointee as its "regulatory policy officer," reporting to the agency head and involved "at each stage of the regulatory process." Under the executive order, agencies need approval of these political appointees before developing rules.
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."