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Administrative Law
SUNY Buffalo Law School
Meidinger, Errol E.

Admin Law Outline

Errol Meidinger

Fall 2014

I . Rule Making- §553 APA- Chapter 2

Informal Rule Making:

1. giving notice (published intent)

2. inviting written comments

3. justification in statement of basis and purpose

BUT § 553 Judicially interpreted to import other procedural obligations AND there may be more procedures in addition to APA from Agency’s mandate

· statutes

· Agency may wish to take advantage of other procedures (Ex. if Agency wants to form rule by advisory committee, must comply with Fed. Advisory Committee Act)

· Exec. branch agencies must comply with exec. orders issued by Pres.

A. Rule Making Initiation

1. Sources of Proposed Regulation- pg. 52

· Bottom-Up- agency staff, private standard setting organization suggestions, interested persons; formal system of priority setting ranking subjects in order of importance

o the public can file rule making petitions

o heads of agencies often rely on their staffàif you can garner support from the ground level staff, you have a better chance of swaying the decision makers

o frame the argument for how it advances the agencies agenda

§ maybe not a LEGAL argument but POLICY argument

· Top-Down- Congressional legislation requiring specific regulations by particular time or upon occurrence of certain events

o White House- can prompt an agency to start a regulation or influence it not to

o Lobbyists

o Congress- can block agency efforts to start or continue rulemaking be legislation, often using riders (prohibits spending money on such an effort)

· when an agency decides to an initiate a rule it must publish that info in the semi-annual Regulatory Agenda

B. Petitions for Rule Making

· § 553(e) says that “ each agency shall give an interested person the right to petition for issuance, amendment, or repeal of a rule

o APA does not require any further procedures concerning a rule making petition, BUT an agencies mandate might do so

· can be part of a lobbying strategy

· Prompt notice must be given if petition is denied and accompanied by brief statement of denial

o peitition is a way to force action from an agency since they cannot ignore

1. Agency inaction- defined as “failure to act” and also applies to Judicial review chapter of APA

· Court may compel an agency to make a decision

C. Unreasonable delay

TRAC v. FCC (FCC waited 5 years before acting on petition from consumer group)

Rule for when writ of Mandamus should issue (after unreasonable delay):

1. time that agencies take to make a decision must be governed by a “rule of reason”

· look at the totality of the circumstances, “is it reasonable for agency to delay”

· look to statute- where Congress has provided timetable or other indication of the speed with which it expects agencies to proceed in the enabling statute, that statutory scheme may supply content for this “rule of reason”

Test/ Factors determining reasonableness:

· delays that might be reasonable in the sphere of economic regulation are less tolerable than human health and wellness considerations

· court should consider the effect of expediting delayed action on the agencies other priorities

· the nature and extent of the interests prejudiced by delay

· the Court need not find the agency to be acting with “impropriety” in its delay

· Test for an unreasonable delay:

o (0) Determine whether the agency’s delay is so egregious as to warrant mandamus

§ Typically never given

o (1) The time agencies take to make decisions must be governed by a “rule of reason;”

o (2) Where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute—courts can look to this statutory scheme to find content for the rule of reason;

o (3) Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;

o (4) The court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;

o (5) The court should take into account the nature and extent of the interests prejudiced by the delay; and

o (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’”

· Is it reasonable?

o who’s

Does greenhouse gases have a negative effect on climate change? (THIS is the kind of question to be answered by the agency that they did not address)

Holding: Yes. EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it otherwise proves some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.

Reasoning: EPA has authority to regulate greenhouse gases in the event EPA forms a judgement the gas contributes to climate change. Judgment must be related to whether an air pollutant causes contributes to air pollution reasonable anticipate to endanger the public welfare. If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the pollutant from new motor vehicles. EPA has offered no explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change

Notes and Questions

1. agency’s refusal to initiate enforcement proceedings ordinarily is NOT subject to judicial review

2. Standard of review of agency rulemaking: “arbitrary, capricious, and abuse of discretion”

a. Agency must examine the relevant data and articulate a satisfactory explanation for its action including a ration connection between the facts found and the choice made”

· Agencies have a duty to not unreasonable delay their decisions

o this is very flexible- it is very hard to show the agency acted unreasonably

o REASONING: agency is best at allocating its resources

o SAME if agency decides to deny a petition

· BUT it is more likely to be reviewed if the agency is denying authority to act (question of law)

o ALSO much more likely to get it reversed when the agency has not made a factual judgment (these two are exceptional cases)