Who Decides What Statutes Mean?

1. Who Decides What Statutes Mean? Congress and the President enact a law The law charges an administrative agency with the task of implementing the statute Disputes over the meaning of the statute are resolved by courts

2. Administrative Law • Federal agencies such as the Federal Aviation Agency (FAA) and the Federal Trade Commission (FTC) and the Bureau of Land Management, all have the power to make regulations which affect citizens and businesses. • Agencies were -- and are -- created to fulfill a need. Someone needs to oversee changing technologies and practices and their effects on society. An agency is created when Congress passes enabling legislation, which describes a problem and defines the agency’s powers. • Agencies often have considerable power in their areas of specialty, sometimes leading to controversy. The Administrative Procedure Act regulates how agencies operate, in an attempt to reduce the controversy.

3. Classification of Agencies • Executive Federal Agency: Part of executive branch, under the control of the President; usually support the President’s policies. Internal Revenue Service (IRS) Federal Bureau of Investigation (FBI) Food and Drug Administration (FDA) Nuclear Regulatory Commission • Independent Federal Agency: Not part of executive branch; President does not have the power to fire the head of the agency. • Are agencies too powerful?? Securities and Exchange Commission Federal Trade Commission (FTC) Environmental Protection Agency (EPA) National Labor Relations Board Federal Communications Commission (FCC)

4. Agency Powers Rulemaking Adjudication Investigation • broad policies; like legislating • affects large classes of individuals, usually prospectively • decide individual rights, obligations • permitting; enforcement

5. Powerof Agencies -- Rulemaking • Three types of rulemaking • Informal rulemaking -- proposed rule must be published and public allowed to comment. • Formal rulemaking -- must hold a public hearing before establishing the rule. • Hybrid rulemaking -- some elements of both of the above -- perhaps the proposal and comment, with cross-examination, but not a full hearing.

6. Power of Agencies -- Rulemaking Procedure: • NOPR • Comment period (hearings?) • Publish final rule • Rule takes effect • [litigation challenging rule?]

7. Power of Agencies -- Rulemaking • Two types of rules • Legislative rules -- require businesses and people to act a certain way; have the effect of a Congressional statute. • Interpretive rules -- these do not change the law; they define or apply the laws to new situations.

8. Power of Agencies -- Rulemaking AT&T Corp. v. Iowa Utilities Board • What, according to the Court, did the FCC do wrong?

9. Power of Agencies -- Adjudication Permitting enforcement Grant or deny permit fine imposed or not Usually paper record; sometimes hearing • Buck Creek Coal Inc. v. FMSHA • Procedures for adjudicatory hearing • A hearing before an administrative law judge (ALJ). • Parties have counsel, but there is no jury. • Informal; both sides present evidence. • Judge makes ruling on testimony and evidence.

10. Power of Agencies -- Adjudication • Internal appeals • If parties are unhappy with results • Loser may appeal to an appellate board. • Appellate board may make a de novo decision, and ignore the administrative law judge’s decision. • Appeals go to a federal court.

11. Power of Agencies -- Investigation • Voluntary -- Some businesses freely give information and readily comply with agency recommendations. • Subpoena -- an order to appear at a hearing and produce evidence, sometimes documents. • Must be relevant to the investigation and under the agency’s jurisdiction, or area of authority. • Must not be unreasonably burdensome on the business. • Must not be privileged; this means that a corporate officer may not be required to incriminate himself.

12. Power of Agencies -- Investigation • Search and Seizure -- a legal search of a business, in order to take evidence of wrongdoing. • Most require a warrant before the search. • Some industries are closely regulated and may be searched at any time, with no warning.

13. Limits on Agency Power • Statutory Control • The enabling legislation that created the agency places controls on it through requirements and restrictions. • Political Control • The President has control over agencies through political pressure and through nominations of agency heads. • Congress controls the budgets of agencies. They can eliminate funding for any program or an entire agency. • Congress can amend enabling legislation to place limits.

14. Limits on Agency Power • Judicial Review • A party injured by an agency decision is entitled to an appeal in a federal court, after all appeal options are exhausted within the agency itself. • Informational Control and the Public • The Freedom of Information Act (FOIA) -- allows any citizen to request information from an agency. • The Privacy Act -- prohibits agencies from giving information about an individual to other agencies without consent. There are some exceptions.

15. Framework • Common Law • Nuisance, Negligence, and Strict Liability • Maddocks v. Giles: Are private tort lawsuits a good way to handle environmental pollution problems? Why or why not? • Major statutes: • Clean Air Act (1970)(air pollution) • Clean Water Act (1972)(water pollution) • Resource Conservation and Recovery Act (RCRA, 1976))(hazardous waste management). • Superfund (hazardous waste cleanup)

16. Framework, cont’d • EPA oversees environmental policy • Delegates authority to states • Civil Penalties (CAA, CWA, RCRA) • Maximum $25,000 per violation • Each day of violation is a separate violation • Criminal penalties (CAA, CWA, RCRA) • Maximum of $50,000 per violation for first offense • Jail • Citizen enforcement

17. Clean Air Act • NAAQS: national ambient air quality standards for conventional (I.e., non-toxic) pollutants • Primary Standards – for pollution that harms public health. Upheld, regardless of cost. • Secondary Standards – standards set for less harmful, but unpleasant pollution. • SO2, NOx, ozone, Particulates, and others • State Implementation Plans (SIPs) – the EPA can produce its own plan of pollution reduction if a state’s plan is not implemented in a reasonable time. • Cost considerations:EPA may not consider cost in setting NAAQS

18. Clean Air Act • Permitting: mixture of federal and SIP requirements. Permitting limits depend upon: • Whether you’re a new source or an existing source. New source standards are more stringent than existing source standards. • Whether you’re in an area that complies with NAAQS or not. Standards in non-attainment areas are more stringent. • Technology-based standards: established by agency writing the permit; but must meet EPA-established minimum standards.

19. New Sources of Pollution/Non-attainment Areas • For businesses in dirtier areas, must acquire “offsets” to build a new source of pollution. • Must achieve the “lowest achievable emission rate,” the most stringent of all the permitting standards for conventional pollutants

20. Acid Rain: Additional Requirements for Coal-fired Power Plants • Caused by rain forming in and falling through polluted air. The effects are damaged crops, forests and lakes. • Power plants have four options for meeting emissions standards: • (1) installing scrubbers, • (2) using low-sulfur coal, • (3) switching to alternative fuels (such as natural gas), or • (4) trading emissions allowances.

21. Air Toxics • Some pollutants are so toxic, that there is no safe level for them. • The EPA is in the process of setting standards for these toxins, based initially on maximum achievable control technology (MACT). • Within eight years after these standards are set, the EPA must raise the standards, forcing polluters to develop the technology to comply.

22. Clean Water Act • The Clean Water Act passed in 1972 had two main goals: • To make all navigable water suitable for swimming and fishing by 1983. • To eliminate the discharge of pollutants into navigable water by 1985. • Established system for requiring permits to discharge pollutants from a “point source.” • These goals have not yet been met.

23. Clean Water Act (cont’d) • Industrial Discharges • The CWA prohibits any single producer from discharging pollution into water without a permit from the EPA. • Federal technology-based “effluent standards” set permit discharge limits by industrial category. • The CWA requires states to set EPA-approved water quality-based permitting standards, which may be more stringent than technology-based standards.

24. Clean Water Act (cont’d) • Sewage • Under the CWA, a municipality must obtain a permit for any discharge from a wastewater treatment plant. • Some industries discharge their wastes to municipal wastewater plants • EPA establishes standards for these industrial discharges • It is up to the municipality to enforce them

25. Clean Water Act (cont’d) • Wetlands • The CWA prohibits any discharge of dredge and fill material into wetlands without a permit. • Isolated wetlands: Hoffman Homes v. EPA • Recent developments

26. Waste Disposal • Two major statutes regulate solid wastes: • The Resource Conservation and Recovery Act (RCRA) focuses on preventing solid waste disasters by regulating its production and disposal. • The Comprehensive Environmental Response, Compensation, and Liability Act (also called the Superfund), focuses on cleaning up existing hazardous waste sites.

27. Resource Conservation and Recovery Act • RCRA establishes rules for treating both hazardous wastes and other forms of solid waste (such as ordinary garbage). • The RCRA sets standards for new and existing landfills. • “cradle to grave” monitoring of hazardous wastes

28. Resource Conservation and Recovery Act • Regulation of “treatment, storage and disposal” facilities (TSDs) is cumbersome and expensive • Easy to become a TSD • Treatment = almost any change in substance • Storage = keeping wastes for > 90 days

29. CERCLA / The Superfund • Potentially responsible parties (PRPs): Under CERCLA, the current owner or operator of a site on which hazardous wastes are found, the owner/operator at the time of disposal, or one who has transported wastes to the site, or who has arranged for the disposal of wastes that were released at the site, is liable for: • (1) the cost of cleaning up the site, • (2) any damage done to natural resources, and • (3) any required health assessments. • National Priorities List

30. CERCLA / The Superfund • PRPs’ liability is: • Strict • Joint and several, and • Retroactive • Allocating reponsibility: BFI v. Ter Maat • Average cleanup cost = approximately $35 million • Average time elapsed from listing of site to cleanup = 11 years

31. The "Gore factors": (1) the amount of hazardous substances involved; (2) the degree of toxicity of the substances; (3) the degree of involvement by parties in the generation, transportation, treatment, storage, or disposal of the substances; (4) the degree of care exercised by the parties with respect to the substances; and (5) the degree of cooperation of the parties with government officials to prevent any harm to public health or the environment.

32. BIGELOW LANDFILL • Notice letternotifying PRPs that: • Bigelow Landfill, a now-closed and covered landfill on a 10 acre parcel, is on the NPL. Landfill began leaking in 1966. County sent only MSW to landfill. • A Hostess snack cake factory now sits on the site. • A plume of contaminated groundwater (metals, solvents, acids) underlies the parcel. • Early estimates of cleanup costs range from $800,000 to $4-5 million. • PRPs are responsible for cleanup. Come to informational meeting.

33. BIGELOW LANDFILL PRP Basis of Liability Vol. Toxicity Frank BigelowO/O 1944-65 N/A N/A Town IDAOwner 1965-71 N/A N/A HostessCurrent owner 0% N/A Small generatorArrangers 60% 20Lowgroup (30 PRPs—10 available) (2% each) 10 High Jim’s Spec. Chem. Arranger 10% High(in chapter 11) DuPontArranger 10% High CountyArranger/Transporter 10% Low IBM+ Xerox

34. Constitutional Limitations • The Takings Clause • 5th amendment • Regulatory takings • Environmental regulatory takings • Lucas type • Other

35. Enforcement Issues • Regulators capacity and will to enforce • Reliance on deterrence and rules • Federal – state tension • Environmental auditing • Adherence to federal enforcement policies • Experiments with collaborative regulation • Amoco Yorktown • Project XL and Performance Track