Administrative Law

The Bureaucracy (Review)

Federal Agencies created by Congress (U.S. Const. Art. I)

• Execute and administer (and enforce) laws passed by Congress

• President may reorganize

  • Environmental Protection Agency (created by President Richard M. Nixon (1970)

• Types of Agencies

  • Cabinet -  Fifteen that serve at pleasure of President (Ex. USDA, DOI, Energy)

  • Independent – Environmental Protection Agency

  • Congressional – Congressional Budget Office (CBO)

  • Judicial

  • Government Corporations – USPS, Amtrak

• State agencies generally created by General Assembly and laws implemented under state rulemaking procedure

Major Federal Environmental Statutes Under EPA Administration

• Clean Air Act (CAA) 1970

• Federal Water Pollution Control Act (Clean Water Act) (CWA) 1972

• Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 1972

• Safe Drinking Water Act (SDWA) 1974

• Toxic Substances Control Act (TSCA) 1976

• Resource Conservation and Recovery Act (RCRA) 1976

• Comprehensive Environmental Response, Compensation, And Liability Act (CERCLA, AKA The Superfund) 1980

Meet your federal regulators

Selected Environmental Protection Functions in Federal Agencies Outside of EPA

• U.S. Department of Interior (1849)

• Bureau of Land Management (BLM) - Federal lands

• National Park Service – National Parks

• U.S. Fish & Wildlife Service - endangered species

  • Endangered Species Act (ESA) 1973

• U.S. Department of Agriculture (1862)

  • Forest Service - Federal forest lands

  • Natural Resources Conservation Service (NRCS) – conservation programs

  • Animal, Plant Health Inspection Service - non-native, invasive species, animal and plant diseases

  • Food Safety Inspection Service - meat, poultry, and egg product safety
    

Creation of the USDA - 1862

Selected Environmental Protection Functions in Federal Agencies Outside of EPA

• U.S. Department of Labor

  • Occupational Safety and Health Administration (OSHA) - workplace environment

  • Mine Safety and Health Administration - workplace environment of mines

• U.S. Department of Defense

  • U.S. Army Corps of Engineers - wetlands protection & navigable waters

  • Department of the Air Force - hazardous waste remediation, energy & water conservation

Limitations on agency power

Constitutional

• Deprive property right

• Violate vested authority

• (as determined by federal courts under power of judicial review)

Statutory –

• authority defined by statute

• Sunset provision

Institutional –

• Executive restrictions

• Congress:  House and Senate oversight (committees)

• Judicial –

  • review of agency action (APA) and authority (statute)

• Budget – Congress restrains spending power

Constitutional limit on agency power

• The Nondelegation Doctrine

  • Congress cannot delegate legislative powers (U.S. Const. Art. I, § 1)

  • Courts have allowed delegation of “micro-level” rulemaking authority, so long as…

    • …The authorizing statute provides intelligible principle to guide agency

    • The delegation to coordinate branches must contain some “intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.” Mistretta v. United States, 488 U.S. 361, 372 (1989)

  • rarely invoked in modern times

• Replaced by Major Questions Doctrine

  • implements a “clear statement rule” that courts follow to interpret clear delegations of authority by Congress to an administrative agency

  • most recently invoked in West Virginia v. EPA (2022)

Common Law Limitation on Agency Power:  Ultra Vires

• The Ultra Vires Doctrine

  • Latin: “Beyond the Powers”

    • Corporate Law doctrine applied to agencies

  • Agency must operate within statutory delegation

  • Courts offer presumption of agency authority

    • Injured party (plaintiff) has burden to overcome presumption in court

  • “… the power of [the agency] is circumscribed by the authority granted.” Stark v. Wickard, 321 U.S. 288 (1944) (ruling that judicial review of an agency action was authorized by the AAA of 1938)

Three Functions of Administrative Agencies

• Rulemaking (legislative)

  • 535 members of Congress unlikely to agree on details of complex environmental regulations

  • Need specialized expertise in scientific matters

• Formal Adjudication of individual cases (judicial)

• Executive activities (executive)

  • Permitting and approval of individual projects

  • Enforcement of rules

  • Other

    • Research

    • Education

    • Defense

The Administrative Procedures Act (5 U.S.C. Ch. 5§551 et seq**)**

• Passed in 1946 following the proliferation of federal agencies New Deal and WWII

• Effort to “systematize” the function of federal agencies

• Authorizes judicial review of agency action by federal courts

  • Distinguished from Marbury v. Madison review

• Imposes procedural requirements upon agencies in their function of rulemaking and other decisions

  • Authorizes federal courts to review compliance

    • Courts continually develop rules of interpretation and review

• Under which pass approximately 2,500 – 4000 rules per year

Rulemaking Steps under Administrative Procedure Act (APA) in 7 steps

1. Identification of need and development of factual basis

   • may include a request for information - Federal Register

2. Review of Proposed Rule by Office of Management and Budget (OMB)

3. Notice of Proposed Rule - Federal Register

4. Public comment period, followed by agency consideration

5. Review of draft Final Rule by OMB

6. Final Rule - Federal Register

   • Major rule - 60 days after publication in FR

     • Impacts economy in excess of $100 Million (as determined by OMB)

   • Minor rule - 30 days after publication in FR

7. Codified in Code of Federal Regulations

Congressional Review Under APA

• Agency sends draft rules to GAO and both Houses

• Congressional Review Act (5 U.S.C. Ch 8 §801 et seq.) (enacted 1996)

  • Joint resolution within 90 days of first receipt of draft “Major” rule (impact of $100Million on economy)

    • Subject to Presidential veto

    • Retroactive to effective date

Types of rulemaking

• Informal (APA §553)

  • Most common

  • Proposed rule published in Federal Register with comment period

• Formal (APA §§556-7)

  • Rare, involves hearings with sworn testimony, much like a civil trial

• Hybrid (not addressed by APA)

  • In common practice, informal + public listening sessions

• Exempt

  • agency or subject matter is exempt from rulemaking by statute or by a previous regulation (which followed APA)

• Negotiated Regulations (“Reg-Neg”)

  • Agency consults with impacted parties who help craft rule

  • Rule proposed through informal APA process

Public input

• U.S. Const. amend. I:  “Congress shall make no law… abridging … the right of the people … to petition the Government for redress of grievances.”

• Informal - written comments

• At least 30 days

• Formal - formal public hearing, sworn witnesses

  • At least 30 days

• Hybrid - written comments, informal public hearing

  • At least 30 days

• Exempt

  • No public input, or

  • After-the-fact (emergency rules)
    

Exempt rulemaking

• Military/National Security

  • Speed, secrecy

  • Not published

• Emergencies

  • Written comment after effective date (usually date of publication)

• Interpretive (agency guidance)

  • Not law

• General policy statement

  • Not law