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Administrative Law
SUNY Buffalo Law School
Gelernter, Lise

Fund for Animals, Inc. v. Rice (1)
The Plaintiffs are attempting to prevent the construction of a municipal landfill on a sight in Sarasota County, FL because it is home to highly endangered Florida Panther and threatened Indigo Snake, which the plaintiffs argues are their indispensable habitat. 
The EPA originally objected to Sarasota County’s application for a permit required under the CWA (Clean Water Act) to the “Corps” (US Amy Corps of Engineers with the authority over the use of wetlands; this use must comply with EPA guidelines) to build the landfill that would affect 120 acres of the area inhabited by these two species . However, the following year the plan was modified to affect only 74 acres and the EPA no longer objected. The Corps approved the County’s request on June 3, 1994 and the plaintiffs sued two weeks later. [FWS wants the EPA to issue a negative opinion so that a permit could not be obtained through the Army Corps] In October of 1994 the FWS (Fish and Wildlife Services) issued its first Biological Opinion for this prospective project stating that this project would not further jeopardize the existence of either of the species. They issued another Opinion after the suit was brought and it again stated further conservation measures that could be taken to protect the species but that it wouldn’t jeopardize the species. The Corps concluded the “reinstatement of the permit to dredge and fill seventy four acres of wetlands with additional modifications was in the public interest” so the permit was reinstated.
The court found against all the issues plaintiffs brought up and upheld district court’s decision to deny plaintiffs relief.
Significance of the Case
Demonstrates one way to get your interests accomplished through procedural means (argue that the proper procedures were not followed by an agency).
Three perspectives on a problem: (1) government agency; (2) agreeing person outside agency; and (3) disagreeing person outside agency
1.       Involves agency doing something to or for someone
2.       Administrative procedure act: required procedures that agencies must follow
Administrative Law includes two different facets: the law that governs agencies and the law that agencies make.
Administrative Procedure Act is the foundation of administrative law course.
Administrative law concerns the process of regulation and is focused on the procedures used by regulatory agencies to reach regulatory decisions.
·         “Departments” are agencies and have the highest status. The President appoints a “Secretary” as the head of the respective departments with the advice and consent of the Senate, and by tradition these heads hold their positions at the pleasure of the President (they can fire them whenever they want). Departments have a general counsel or its equivalent.
·         Many agencies are not part of a department. Many of these freestanding agencies are known as “independent agencies” (NLRB, SEC, FTC) to distinguish them from what are known as free standing “executive agencies” (EPA and Social Security Administration). Independent agencies are slightly more independent from the President’s influence than executive agencies.
o        Headed by multimember groups w/ majority voting system
o        Cannot really be removed by president but for cause
o        Members serve in terms of years
·         The definition of “agency” in the APA is broadly inclusive, “each authority of the Government of the U.S., whether or not it is within or subject to review by another agency.” It wasn’t until 1992 in Franklin v. Massachusetts that the President was determined not to be an agency under the APA.
One significant difference between many state and federal agencies is that in the states many agencies are headed by elected officials, rather than officials appointed by the governor. In states, many agencies are directly accountable politically and may not be subject to the supervision of governor—makes for much different dynamic than that which exists within federal agencies.
3.       What Agencies do: (execute laws of the United States)
a.       Regulate: Regulatory Agencies are engaged primarily in regulating private conduct. At the federal level there are dozens of regulatory agencies enforcing hundreds of laws that address consumer protection, preservation of the environment, economic welfare, and other social and economic goals.
                                                               i.      Two general justifications exist for the extensive regulation of private conduct:
1.       First, the country has a private market system, but markets are subject to imperfections that the government can remedy or at least mitigate.
2.       Second, the operation of unregulated markets may also produce results or consequences that a majority of the citizens consider unacceptable, even if they are efficient from an economic perspective. This regulation is used to conform market outcomes to social values such as fairness and equity.
b.      Administer Entitlement Programs: (Social Security, Medicare, Welfare, etc..) Focus is on dispensing federal and state funds for specified purposes to the proper recipients. In economic terms these programs are “public goods” because they spill over to the entire public including persons who have not paid for the program. Also, can be described as “government charity”-altruistic view. There can also be a subsidiary or related regulatory effect.
c.       Everything Else: Not all agencies’ duties can fit into neat categories. For example the IRS’s collection of taxes is neither a regulatory or entitlement concept.
4.       Types of Agency Action:
a.       Rulemaking: corresponds to legislative action. When an agency does this it promulgates a regulation that has the same force and effect of law as if it had been passed by Congress or a state legislature. 
                                                               i.      Federal agencies initially publish their regulations in the Federal Registrar. The Fed Registrar is a document that the fed government publishes daily to provide notice concerning proposed and final rules and other agency actions.
                                                             ii.      Unlike Congress, the agency does not have the power to regulate concerning any subject permitted by the Constitution, because its authority to act is limited to the powers specified in its legislative mandate, making it only “quasi-legislative”
                                                            iii.      Regulations promulgated by the agency are valid only is the agency follows the procedural requirements applicable to rulemaking.
                                                           iv.      An agency lawyer serves three functions in the rulemaking process:
1.       Ensures the applicable rulemaking procedures are followed
2.       Give legal opinion whether certain regulatory options are within the agency’s statutory authority.
3.        Defend the agency in court if a rule is appealed.

ses the hearing procedures. It authorizes the use of an Administrative Law Judge (ALJ) and specifies the judge’s authority, places the burden of proof on the agency etc…
b.      Informal Adjudication: If it is not mandated in the APA that formal adjudication be used then there are no proscribed procedures to follow. However, there are two circumstances that require an agency to follow hearing procedures:
                                                               i.      The statute requires that the agency use some hearing procedures
                                                             ii.      If the due process clause applies to the agency’s action it may be obligated to follow some type of hearing process.
Class Overview
Separation of Powers: Departments/Agencies create tension between the branches defined roles
Executive Branch: under the president there are the following:
Departments (Cabinet): the head o f the departments are secretaries
                                                               i.      Power to issue regulations (an agency interpretation of the law which is published in the federal registrar)
                                                             ii.      Power to adjudicate
Independent Agencies/Commissions: governed by boards
Congressional Branch:
Issues statutes that must be executed
                                                               i.      Example: TARP: had to create an Office of Financial Stability and publish regulations in the federal registrar to buy up troubled assets; Secretary of Treasury could not have accomplished this without a statute because it isn’t within his delegated powers.
                                                             ii.      Why does the Congressional Branch do this?
1.       Political Agenda
2.       Expertise
3.       Capability/Capacity to implement and carry out regulations
4.       Flexibility
                                                            iii.      How a Statute is Read: (Using TARP as an example supp. page 13-18)
1.       Table of Contents
Separation of Powers
Administrative agencies defy the power separation as defined in the U.S. Constitution; Lawyers attempt to utilize these violations of separated powers to strike down agency actions.
 Constitutional Law is important for understanding the limits on power that administrative agencies before the agencies impede on another branches power
·         Legislative Powers: (Art. I in supp, pg. 19): enact all laws that are “necessary and proper” (example TARP)
o        How does the non-delegation doctrine affect how Congress can enact laws under the “necessary and proper clause?”
§         Since the 1930s, the judicial branch has not struck down any laws created by Congress under this doctrine.