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Environmental Law
Rutgers University, Newark School of Law
Deutsch, Stuart L.

Environmental Law Deutsch Spring 2012

Administrative Procedure Act

Non-delegation doctrine

Intelligible principle

Agency’s power

– Rulemaking

– Formal adjudication

– Permitting and approval of specific project

– enforcement against violations of the statute or rule

APA

Rule Making

– formal

– informal

Guideline and informal policy interpretation is not under APA and is not binding.

Court’s difference to Agency

– issue of technical fact or policy, or statute not mention – deferential

– issue of question of law – no differential

– Interpretive rules – not strong differential, but has initial presumption of deference

Federal register (FR) for publish of federal rule, regulation, orders

APA $553 Informal Rulemaking

– Notice of proposed rulemaking (NOPR) in FR

– public comment

– promulgate the rule ( including response to comments)

– In effect in 60 days for major rule and 30 days for non-major rule

– congress can disapprove a rule through a joint resolution under Congress Review Act.

APA Formal Ruling $ 553 + $ 556-557

– Full trial-type process, representation by counsel, discovery, motions, production of evidence, a written transcript, and cross-examination before agency as administrative judge.

– formal rulemaking is ordered in the statute.

Adjudication

– formal: $ 554: notice to the party of the time, place, and nature of the hearing and of the matters of fact and law asserted (b) public opportunity to submit argument, (c) formal hearing under 556-557 (d) and independent decision-maker bound to decide.

Judicial review process

– unless a statute expressly precludes judicial review, or the agency action is subject to agency discretion, any administrative action is reviewable.

– aggrieved party must assert proper jurisdiction has standing to sue, ripeness, and exhaustion of administrative remedies.

Standing to sue

– Citizen Suite provision: congress could establish direct standing allowing citizen to enforece sttues when the agency fail to act. (CWA $ 5050, for example).

– Req for standing (Valley Forge Christian College v. Americans United for Separation of Church and State p. 69)

o Injury-in-fact: actual or imminent, and concrete and particular to the pf

o Causation: The action of the defendant has to actually caused the injury to the pf

o Redressability: The court has the power to address the problem and make it away.

– Rationale of Standing requirement

o Separation of power: whether the court is the proper road to the issue, whether the legislature would be a better place to resolve the issue; illusionary question is against the separation of power.

§ Avoid formulate public policy in the guise of a lawsuit. I doing this the court will infringe the powers of Congress and the President.

o “Case and controversy” requirement of Article III

§ Abstract content: adjudicate issues that have fact to see how it operates in the true world.

– Congress could confer standing on litigant by change the substantive law which enables litigants to satisfy the core requirement.

– Lujan v. Defenders of wildlife, 2000 – Any citizen still has to satisfy the concrete injury even the congress create the citizen suit. Because the Art III is mandatory, cnay congressional act will yield to the CON Art III req.

– Summers et al. v. Earth Island Institute et al

– following Lujan, it must fairly treacable to to the challenged action of the defendant; and it must be likely that a facorable judicial decision will prevent or redress the injury. and held the environmental organization’s member’s mere plan to revisit the national forest does not have a contrete and particularized injury.

– the harm must imminent and CTUAL, NOG CONJECTURAL OR HYPOTHETICAL

APA – Saack case******

· Family fill wetland

· EPA Adm order to remove fill from the wetland

· EPA – AO is a interim not subject to judicial review

o Distrcit and … cort agreed w/ EPA

o The US spreme cout that the AO is the final decicision under Administrative Procedure Act

· The EPA made factual determiniation that Saack wast told that he could challege the decision

· A statute could have language that the AO is not subject to judicial review.

§ Like CERCLA has the certain statute to avoid the AO to judicial review

NEPA

National Environmental Policy Act

§101 = 42 USC 4331

Definitions 1508

NEPA basic

– Signed into law by President Richard Nixon on January 1, 1970, NEPA

– Establish Council on Environmental Quality

– Procedural statute; Does not create any environmental rights

– NEPA is a procedural statue.- its does not mandate best environmental outcome, it requires the agency be aware of the potential impcat to take into account. — SP crt, once it took it into account, the court cannot invalidate it . But the court could review the adeequence of the EIS.

EIS §102(2)(c)

An agency must prepare an EIS w

ral and physical environment and the relationship of people with that environment. (but not social or economical effect itself.)

(b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety.

(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.