ADMINISTRATIVE LAW—FALL 2014, PROFESSOR SALOMONE
I. ADMINISTRATIVE LAW PRACTICE
1. What is a typical Administrative Law Case?
a. Ask yourself:
i. What agencies are involved?
ii. Who is plaintiff? Defendant?
iii. Who are the regulated parties?
iv. What are the governing statutes?
v. Where does the “lawyering” occur?
1. Answeràusually BEHIND THE SCENES
b. Basic Questions:
i. Who are the players?
ii. What are their interests?
iii. How can they further those interests before they go to court?
c. Fund for Animals, Inc. v. Rice (11th Cir. 1996)àPlaintiffs seek to prevent the construction of a municipal landfill (895 acres covering about 74 acres of isolated wetlands) on a site in Sarasota County, FL. P’s claim this is an indispensable habitat for the endangered Florida Panther and Eastern Indigo Snake. Notice and comment issued by ACE, FWS issued opinion but EPA recommended rejection under CWA since it was projected 120 acres of wetlands would be affected, Sarasota offered an alternative analysis and reduced down to 74 acres, EPA approves.
i. Issues:
1. Did the district court err in finding that the Corps did not act ARBITRARY OR CAPRICIOUSLY in the following?
a. Grating the permit to fill 74 acres of wetland
b. Not holding public hearings on the project
c. Not preparing EIS under the NEPA
2. Whether the district court erred in finding that the FWS did not violate the ESA by issuing “no jeopardy” biological opinions
a. Did Corps act arbitrarily and capriciously in relying on those opinions?
ii. Agencies involved:
1. US Army Corps of Engineers—permit from Corps of Engineers required to fill in wetlands
2. EPA—may review proposed permit issuances for consistency with the guidelines
3. FWS—must review the action and issue a “Biological Opinion” assessing possible significant effect if gov’t action may adversely affect endangered special
a. If so, action is prohibited and gov’t agency must create an Environmental Impact Statement (EIS)
iii. Governing Statutes:
1. Clean Water Act §404
2. Endangered Species Act
3. National Environmental Policy Act
d. Failure for not complying with the APA’s required procedures is likely to result in reversal of an opinion
e. Threat of litigation is useful to influence the administrative process
2. What is administrative Law?
a. Consists of two branches
i. The law that governs agencies (What we will study here)
1. Federal system/APA
2. States have their own administrative rules
3. Constitutional Norms/Constitutional Law
4. Found in guidelines developed by agencies themselves
ii. The law that the agencies make themselves
iii. KEY PHRASEàFAIRNESS IN THE PROCESS OF DECISIONMAKING
3. Types of Agencies
a. Executive Agencies
i. Vary in size, number of employees, number of “General Attorney positions, salaries
1. Cabinet Departments
a. Generally headed by a “secretary” that is nominated by President, with consent of Senate
i. Ex: Homeland Security, Department of Education, Department of Justice (headed by Attorney General)
2. Sub-Entities (agencies)
a. Headed by Administrator/Director/Chief (nominated by President with consent of Senate)
3. Independent Executive Branch Agencies
a. Don’t belong to any Cabinet position
i. Ex: EPA, Social Security Administration, Small Business Association
4. Heads
a. Serve at the pleasure of the President
b. Independent Regulatory Agencies
i. Headed by a multi-member board/commission/council, conference
ii. Reach decision by a majority vote
iii. 5-7 members
iv. Serve for a fixed term (generally 5 years) on a staggered basis
v. Can only be removed for cause
vi. No more than a simple majority can come from one political party
c. State Agencies
i. Similar structure as federal agencies
ii. But some are headed by elected officials
1. These individuals are directly accountable politically and may not be subject to supervision of the governor
d. Government Corporations
i. May or may not be “agencies” governed by the APA
1. Ex: Amtrak, legal Services Corporation, Corporation for Public Broadcasting
a. Statutes designate as not being “agencies”
4. What do Agencies Do?
a. Regulate private conduct
i. Justification
1. We have private market system and we can use regulations to remedy or at least mitigate some imperfections
2. The operation of unregulated markets can produce benefits to those partaking in the market, but produce adverse effects to the public
a. Thus we use regulation to conform market outcomes to social values, such as fairness or equity or other social aspirations
3. Some businesses such as utilities have insufficient competition and regulation prevents them from exploiting their monopoly status
4. Spillover costs when someone harms another or the environment
5. Other regulations may be in place for noneconomic reasons such as discrimination or social values
b. Administer entitlement programs
i. Can be looked at as providing the public welfare with a safety net in an effort to reduce crime and keep even our poorest Americans at a certain level. Or it can be described as government charity done for altruistic rather than utilitarian motives.
c. Everything else
5. Types of Agency Action
a. Rulemaking—legislative function
i. You must look to the underlying statueàagencies only have the power that Congress gives them. Statute will disclose which rulemaking procedures apply
1. § 551
a. (4) “RULE”àthe whole or part of an agency statement of general or particular applicability and future effect
b. (5) “RULEMAKING”àmeans agency process for formulating, amending, or repealing a rule
c. (6) “ORDER”à the whole
iii. Action must be “ripe” for judicial review
1. The person must be suffering a legal wrong or be adversely effected or aggrieved by an agency action
d. Standing
i. Constitutional requirementàArticle III, individual must have suffered (or is about to suffer) an injury as a result of the government action and that a favorable court decision can redress or prevent the injury
e. questions on review
i. Investigating:
1. Constitutionality of agency action?
2. Action contrary to statute?
3. Substantive adequacy of agency action?
4. Adequacy of the procedures used by the agency?
ii. APA standards:
1. “de novo”àinstructs a court to substitute its judgment for that of the agency
2. “substantial evidence standard”àinstructs a court to uphold a decision if it is “reasonable”
3. “arbitrary and capricious” or “abuse of discretion”àaffirm a decision unless the judges can say that the decision is “arbitrary”
f. APA as a Compromise?
i. New Deal origins
ii. Compromise
1. Rulemaking
a. Good for New Deal
b. Institution for legislative branch, made by the “experts” on the issues
c. Legislative history, congressional reports, preamble, hearingsàto get a sense of what regulations can be adopted
2. Adjudication
a. Good for proponents of the APA
b. Limit/put parameters around what agencies can do
g. Criteria for Evaluating Procedure
i. Accuracy
1. Ascertainment of facts/issues
ii. Efficiency
1. Resources (personnel, time, money), make sure they are not wasted
iii. Acceptability
1. To entities that are being regulated, you are more likely to comply if they are acceptable
II. AGENCY STRUCTURE AND DELEGATION
1. Constitutional Underpinnings
a. Separation of Powers
i. Article II § 1 of Constitutionàexecutive power shall be vested in a President
ii. Article I, § 1 of Constitutionàall legislative powers…shall be vested in a Congress of the United States
iii. Article I, § 8àempowers Congress “to make all laws which shall be necessary and proper”
iv. Article II, § 1à”the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may…ordain and establish”
1. BUTàTHERE IS A BLENDING OF POWER (“checks and balances”)
