Introduction to Administrative Law For Environmental Law Students

1. Introduction to Administrative LawFor Environmental Law Students Edward P. Richards

2. Administrative Law • Administrative law governs the organization and functioning of government agencies, and how their actions are reviewed by the courts.  • Administrative law is the heart of the modern state, and keeps life from being nasty, brutish, and short.

3. Cross-Cultural View • The US administrative law system has many parallels with non-Louisiana civil law systems • An emphasis on codes, rather than case precedent • Inquisitorial rather than adversarial adjudications • The combination of functions in a single agency, rather than in different branches of government

4. Agencies are Established by the Legislature • The agency enabling statute establishes the agency's: • Powers and Duties • Organization • Funding • Standards for Judicial Review of the Agency's Actions • Some state agencies are established by the state constitution or constitutional amendments.

5. Agencies only have the Power Given by the Legislature • General Grant of Power • Public health laws • Specific Grants of Power • Narrowly drawn statutes such as the Americans with Dishabilles Act. • Contingent Grants of Power. • Laws that are triggered by a declaration of a state of emergency. • The Legislature cannot grant the agency more power than the legislature itself can exercise

6. Executive Control in the Federal Government • All enforcement agencies are in the Executive branch. • Enforcement can include orders to comply with the law, fines, and criminal prosecution. • Congress can control agencies that only do studies and investigations, such as the Congressional Budget Office or the Library of Congress.

7. Executive Control in the States • States have several elected executives that control agencies, not a single head like the president. • The governor controls most agencies. • The attorney general controls the legal office. • Other state offices, like state auditor, also have elected heads. • Some states even allow legislative agencies with enforcement powers

8. Legislative Oversight of Agency Appointments • The US Constitution provides that the senate must approve the appointment of officers of the United States. • The heads of most executive branch agencies, and some of their subordinates, are officers of the United States and thus must be approved by the Senate. • The Senate can use this to threaten agencies when the president is from another party.

9. Removal of Agency Heads • Most agency directors in the state and federal system serve at the pleasure of the executive • This is a major source of executive control over agencies • Some agencies, called independent agencies, are run by boards or commissions. • Members have fixed, staggered terms and can only be removed for bad conduct • This limits executive control and gives the agency some independence from political pressure

10. Non-Agencies and Administrative Law • The President is not an agency. • The military is a quasi-agency • An agency for many organizational and procurement purposes • Not an agency for military actions • DOJ, police departments, and courts • Agencies for basic governance • Not agencies for their substantive criminal law work.

11. Agencies are the Vehicle for Carrying out Political Policy • Enforcement policy • When does a business get a second chance and when do they get closed for violating regulations? • When do you use quarantine and isolation? • Fiscal policy • Which diseases do you investigate when you have limited staff? • What programs are cut when the budget is cut? • Changes of government can profoundly change agencies

12. Changing Agency Policy • Executive branch control • Replace the agency director • Use Executive Orders to direct agency policy • Legislature • Change the enabling law • Increase or eliminate the funding for agency functions • Citizens • Petition the agency to change regulations • Participate in pubic hearings • Lobby the executive and legislature • Elect different politicians in the executive and legislature

13. Carrying Out Agency Policy

14. Administrative Procedure Act (APA) • The set of laws in each state and the federal government that specifies how the agencies in that jurisdiction carry out basic functions such as rulemaking, adjudications, and how citizens can petition the agencies. • APAs were first adopted post-WWII • The APA only applies if the legislature has not made special rules for a given agency. • Federal APA

15. Administrative Rules • The Legislature can delegate the power to make rules to the agency • Some agencies do not have rulemaking authority • Rules cannot exceed the authority in the agency's enabling legislation or the Constitution • Properly promulgated rules have the same effect as statutes

16. Definition of a Rule • APA 551(4) • (4) 'rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing; • Not a clear definition • Things that are not adjudications or licensing

17. Functional Definitions • General applicability, as opposed to specific parties • Prospective • Binding on the agency as well as on the public

18. Orders versus Rules • Rules are directed to the universe of regulated parties, not to individuals. • Agency directives to specific parties based on individual facts are called orders. They may trigger a hearing for the individual, but do not need notice and comment. • Assume the EPA makes a rule that applies to copper smelters which are located more than 5,000 above sea level. • What is there is only one? • Is this still a rule? • Do we see statutes directed at single parties?

19. Jargon Alert • Rule, legislative rule, or regulation • They all mean the same thing • Has the same effect as a statute passed by the legislature • Non-Legislative rule • Has no legal effect, but shows what the agency thinks the law is • Many names - interpretive rule, guidelines, guidance document, anything but rule or regulation

20. The Agency as Legislature • The modern rulemaking process got started in the 1950s and really accelerated in the 1970s • Parallels the growth of federal agencies • The federal courts now encourage agency rulemaking • It reduces litigation and simplifies the litigation that ensues

21. The Power to Make Rules • The power to make rules must be delegated by the legislature • If the enabling legislation (the legislation creating an agency) is silent, the agency cannot make rules • The delegation may be broad, allowing the agency great discretion, or very narrow • We will look at the standards for reviewing this delegation later in the course

22. Must the Agency Make Rules? • If the agency has the power to make rules, it has the discretion on what rules to make and when to make them. • The legislature can put provisions in the agency legislation requiring that certain rules be made, and the timeframe for making them. • The Clean Air Act required rulemaking to flesh out detailed technical standards • Unless there is a legislative directive, it is difficult to get the courts to force an agency to make rules • Not impossible, as we will see latter.

23. Why Make Rules? • Many statutes have too little detail to be enforced without additional rules. • Rules can be used to tailor a statute to new circumstances. • Rules provide a chance for the for the public to participate in the regulatory process • Once promulgated, a rule in binding on every party, reducing the need for adjudications.

24. Uniformity • Rules set up a general framework that treats all parties uniformly • Rules are the fairest way to make big regulatory changes • If the agency does not have rules, it can change enforcement policy from case to case, and is also at the mercy of judges to accept or reject agency standards

25. Adoption of National Standards • National standards can be adopted through agency rules, harmonizing practice across jurisdictions • National building codes • CDC guidelines on food sanitation • Recommendations of the Advisory Committee on Immunization Practices • LA and building codes

26. Agency Efficiency • While a rulemaking can be expensive and time consuming, it can settle issues which might otherwise have to be litigated in every enforcement case. • Disposal of Nuclear Waste • Rulemaking can eliminate many hearings by resolving factual questions • In disability cases, rules can be used to establish what constitutes a disability, rather than making it as case by case determination.

27. Agency Oversight • You can control the outcome of rulemaking much easier than that of adjudications • Not dependent on ALJs (administrative law judges) • More input from across the agency • Input from the public as well • Directly controlled by agency policy makers

28. The Politics of Rulemaking • Congress often dodges the hardest issues and leaves them to agency rulemaking • Most of these involve cost-benefit analysis • How do you trade off automobile safety with price and fuel efficiency? • Are you more worried about delaying the entry of new drugs or the about allowing the sale of a drug with dangerous side-effects? • Do you want cheap power at the cost of lots of asthma and the Grand Canyon full of smoke?

29. Downside of Rulemaking • Trials (adjudications) involving single parties can be more flexible in the individual cases • Adjudications are useful when you are not sure what the rule should be and need more info and a chance to experiment • Rules can be so abstract or overbroad that they are expensive or difficult to follow • Like statutes • Agencies can promulgate rules that Congress would never pass - Green House Gas Regulation.

30. Rulemaking Ossification • The courts and legislatures have increased the burden on rulemaking, especially in states • Rulemaking has gotten so complex and time consuming it has lost some of its value • Complicated by regulatory conflict and incompetent agency practice • Rulemaking can go on for years • What is the legal value of a proposed rule that has not been finalized? • The Medicare anti-kickback regulations were delayed for years between the proposed rule and the final rule

31. Notice-and-Comment Rulemaking • APA Procedures • http://biotech.law.lsu.edu/Courses/study_aids/adlaw/553.htm • The Register • The Federal Register • LA Register • Electronic Notice • http://www.regulations.gov

32. Why Have Public Participation? • Public participation has great political benefit in broadening the acceptability of the rules. • Public comments can identify technical and legal problems with the rules • Publication of proposed rules allows politicians to become involved to protect the interests of their constituents • Public participation limits executive power and makes it more palatable to the courts to have agencies making laws • While the agency may take comments at hearings, it is usually done in writing.

33. 553(b) - Exceptions to Notice Requirements • 1) Interpretative rules, general statements of policy, and rules of agency organization, procedure, and practice; and • 2) Rules when the agency finds for good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. • No notice means no comment under 553(c)

34. Exception 1 - Interpretative Rules • It is only explaining the law or providing guidance for action • Prosecution guidelines • IRS audit guidelines • Since they do not change the law, they have no legal effect • Like commentary in the civil law? • Does that mean you can ignore them?

35. EPA Example – Is This Definition a Rule? • EPA says that the term “waters of the United States” (which defines the jurisdiction of EPA under the Clean Water Act) includes wetlands that potentially provide habitat to migratory birds. • This might include a pothole in a field, not otherwise connected to a waterway. • If the EPA has jurisdiction over the wetland, it will become expensive or impossible to drain or develop the area.

36. Is this an Interpretative Rule or a Legislative Rule? • Can we tell by just looking at the rule? • How might this definition affect the value of the wetlands? • Is this a “substantial impact”? • Assuming that it is a substantial impact, how can the agency defend not using notice and comment? • The substantial impact test has now been mostly abandoned in favor of the “legally binding” test.

37. The “Legally Binding” or “Force of Law” Test • Can the agency enforce the law without the rule? • Continuing with the previous wetlands example • Is the agency required to define wetlands before enforcing the statute? • Was the agency doing enforcement before this rule? • If so, does this change the enforcement? • What does tell us about whether it is legally binding? • Assume a statute allows the agency to define toxic substances that cannot be dumped into lakes. • Would a list of these substances need notice and comment? • Could the law be enforced without the list?

38. Judicial Review of Rulemaking • Once a rule has been properly promulgated through notice and comment, it can only be attacked by attacking the published basis for the rule, and that must be done relatively soon after promulgation. • It can always be attacked if it exceeds the power granted to the agency. • Central issue in the Clean Power Plan.

39. Adjudications

40. When Agencies Make Decisions - Adjudications • How is an adjudication different from a rule? • Rules apply to everyone in the affected class. • Adjudications decide questions in individual cases and only bind those parties. • Parties to an adjudication are entitled to be heard. • Adjudications may include oral hearings. • Some adjudications are done on written documents only.

41. Administrative Law Judge (ALJ) • A fact-finder in the administrative law system. • ALJs usually act as inquisitorial judges and try to assure that the case is fairly presented and decided. • ALJ's do not make final decisions but make recommended rulings to the agency • Some states give more power to ALJs in the name of fairness. • Louisiana gives all the power to the ALJs.

42. Article III Judges Protections Lifetime tenure Cannot reduce salary Cannot fire, only impeach Cannot discipline Why do we have these protections? How are state judges different? ALJs Civil service protections Can be fired Can have salary lowered, but hard to do this Can set work standards and discipline How are the pressures different than those on an Article III judge? What about contract ALJs that some states use? ALJs versus Article III Judges

43. How are the expectation for ALJs Different from Article III Judges? • What does the judge know? • Administrative law judges (ALJs) may use their own knowledge of the subject. • Judges can be disqualified if they know about the subject. • Conflict of Interests • ALJs often know the parties and may have worked on the case. • Judges in courts cannot know the case or the parties.

44. How are Adjudications different from Judicial Opinions? • ALJs are primarily fact finders. • ALJs often follow Attorney General Opinions. • Judges decide legal questions on their own. • ALJ decisions are recommendations to the agency and may be changed by the agency. • An adjudication is not binding in other cases. • Court decisions can be binding on lower courts.

45. Agency Enforcement Tools

46. Permits and Licenses • You have to show you have met the standards set by law or regulation before you get the license or permit. • Standards must be clear. • Must treat all applicants equally. • Conditioned on accepting enforcement standards • You agree to be bound by the administrative rules. • You must allow inspections during business hours. • Licenses and permits can be revoked without a court order

47. Administrative Searches • License and permit holders may be inspected without a warrant. • Other inspections may require an administrative warrant. • Requirements for an administrative warrant. • No probable cause. • Must show the reason for the search and the locations • Administrative searches cannot be used when a criminal warrant is necessary. • Special rules for national security law

48. Inspections are Adjudications • The inspector determines the facts through the inspection. • The defendant may present its case explaining the problem during the inspection. • The inspector must provide a written record. • Local government often allows appeals to the city council. • The courts will defer to the inspector's findings if the case is appealed to the courts.

49. Administrative Orders • The first step in enforcement is to issue an order explaining the violation and how to correct it • Most persons comply with the order • If the person does not comply, the order proves that the person was on notice of the problem • In some cases there may also be a fine for not complying with the order

50. Enforcement of Agency Orders • If the target of the order does not comply, then the department must seek a judicial order to force compliance • Most agencies don't make arrests or use force • Some agencies do have police and prosecutors