Env. Law, Lecture 3

Administrative Law

env. law is classified as administrative law bc env. laws are *overseen* by administrative agencies

Rule Making

- *APA* governs rule making
- section 553 of APA is exemption that allows agency to decided if public participation will be allowed
- exemptions in military or foreign affairs and agency management or personnel

informal rule making

- publishing of proposed rule in federal registrar
- comment period
- final rule published or agency redrafts rule

formal rule making

- requires hearing
- most enabling statues do not require formal rule making/hearing

hybrid rule making

written comments + informal public hearing

Administrative Law Process

- informal rule making

EPA Workgroups

when EPA identifies the potential need for regulation, a workgroup is formed to learn more

Semiannual Regulatory Agenda

- unified agenda
- twice a year, each agency publishes a comprehensive report that describes all the regulations it is working on or has recently finished

Challenges to Federal Rules

after a rule is promulgated (2 options)
- regulated party may bring an action in federal district court to have law invalidated
- regulated party could ignore the law until fined for violating it and then challenge its validity

when challenging a federal rule the regulated party must prove

- legislative authority was unconstitutional bc too vague/broad
- agency violated a constitutional standard
- act of agency was beyond scope of power
- agency did not follow proper procedure
- unlikely that rule will be struck down but challenge can save regulated party money if compliance cost is high

Regulated Negotiation (Reg-Neg)

- each concerned interest group and the agency sends representatives to bargaining session led by mediator
- result is usually consensus that avoids later challenges

Adjudication

- administrative law judges hear many env. cases
- appeals are now heard by the env. appeals board (1992)

Administrative Procedures Act (APA)

sets out rule making procedures requiring public involvement

Freedom of Information Act

requires federal agencies to publish in the federal registrar and to make agency information public

Government Sunshine Act

requires agency business meetings to be open

Federal Tort Claims Act

allows public to sue gov. for improper acts of its employees

Institutional Limitations: Executive Branch

- power of president to appoint heads of agencies
- power of president to issue executive orders
- power of OMB to recommend budget

Institutional Limitations: Legislative Branch

- oversight power
- power to terminate agency
- power to approve/not approve budgets
- power to advise and consent nominations
- rarely-used power to overturn administrative regulation within 60 days of promulgation

Institutional Limitations: Judicial Branch

- citizens of overton park v. vlope: *agency actions are subject to judicial review* unless there is a statutory prohibition
- agency discretion exemption has been interpreted very narrowly
- agency action must be set aside if arbitrary (unconstitutional) or capricious (outside scope of power)

EPA is headed by an

Administrator
- Scott Pruitt

History of EPA

- established in 1970
- 10 regional offices
- Texas in region 6

Interagency Cooperation

- EPA strategic plan states EPA must work with approx. 20 other federal agencies to meet common goals
- OSHA, NOAA, Department of Energy have worked closely with EPA