Administrative Law

1. Administrative Law

2. Administrative Law • Controls the exercise of governmental power by administrative agencies. • Controls the way in which agencies develop, administer and enforce their authority. • Principles are the basis for legal remedies for those aggrieved by administrative actions.

3. Separation of powers • Legislative power • Essential function is make laws (statutes, ordinances) • Ex: Congress; Legislature; City Council • Executive power • Essential function is administer programs • Ex: President; Governor; Mayor • Judicial power • Essential function is resolve disputes (adjudicate) • Ex: Federal courts; State courts; hearing examiners

4. Agencies • Agencies (federal, state, local, regional) • Agencies combine all powers in one body • Legislate: adopt regulations • Adjudicate: hold administrative hearings • Administer: develop policies; issue permits; enforce

5. Some Fundamentals (from Fox) • Agencies are creation of legislature – enabling legislation • Often have considerable discretion in carrying out their functions (rulemaking, adjudication) • Courts have assumed a limited role in reviewing agency actions

6. Limits on agency power • Statutory delegation (via enabling act, substantive statute) • Statute must delegate adequately (what are limits to power? who does what, when) • Example: Clean Air Act, Clean Water Act • Procedural controls • Administrative Procedures Acts (APA) • Federal APA (5 USC 551 et seq); • State APA (Ch. 34.05 RCW); • Local APA (e.g. Seattle Municipal Code )

7. Other limits to agency power • Executive: appointments, budgets and audits, • Legislative: approve appointments, review rules, agency sunsetting provisions • Judicial review

8. Agency Rulemaking • RCW 34.05.010(16) - a rule means any agency order, directive or regulation of general applicability • the violation of which subjects a person to a penalty or sanction; • which establishes, alters, or revokes any procedure relating to agency hearings or the enjoyment of benefits or privileges conferred by law; • which establishes qualifications for the issuance, suspension or revocation of licenses; or • which establishes mandatory standards for any product or material that must be met before sale.

9. What is an agency action?Fox: Section 104(a) • Federal APA • includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act • RCW 34.05.010(3) • licensing, the implementation or enforcement of a statute, the adoption or application of an agency rule or order, the imposition of sanctions, or the granting or withholding of benefits.

10. Agency Rulemaking RequirementsAPA and RCW • Notice of rule/intent • Opportunity to comment • Response to comments • Publication of resulting rule

11. Enforcement Response Process • Informal • Notice of Violation • Formal • Administrative Order, Consent Order • Civil • Referral, Complaint, Consent Decree • Settlements • Pertains to Admin and Civil Cases • Core Concept: Timely and Appropriate Response to High Priority Violators

12. Penalty Matrix - Civil and Admin • Looks at: • Potential for harm • Extent of deviation from requirements • Up to statutory limits • Also factors in: • Good faith efforts • Degree of willfulness/negligence • History of non-compliance • Ability to pay • Economic benefit of non-compliance

13. Admin Hearings • EPA files complaint, lodged with hearings clerk • Lists violations • Penalty according to penalty matrix + injunctive relief • Defendant responds • EPA/defendant hold regular conferences to resolve/settle • Nationally - 400 cases per year - Average penalty 170k • Typical timeframe from filing to decision - 18 months

14. Admin Hearings con’t • EPA both prosecutor and judge • Prohibitions on ex parte communications • Hearings may be held in DC, Region or Defendant’s county • Witnesses, exhibits similar to civil, but Rules of Evidence are more informal • Trials generally last just a few days • At end, EPA, Defendant offer opposing findings of fact/conclusions of law, proposed order, supporting briefs

15. ALJ Process (con’t) • Presiding officer issues ”Initial Decision” • All material issues of law or discretion • Proposed penalty, explanation of why it differs from EPA’s (if that is the cae) • Decision becomes final unless • either party files motion to reopen within 45 days • Motion to appeal within 30 days

16. Environmental Appeals Board • Provides for orderly review of important issues of law prior to federal court review • Latter done typically pursuant to Administrative Procedures Act • Usually response to motion to appeal ALJ decision • Board composed of four members • Panel of three typically hears a case • Review is de novo • Final decision last step in admin process

17. Court Challenges • Final agency action? (impose obligation, deny right, fix legal relationship) • Exhaust administrative remedies? • Standing?: • Statutory standing (“any person”?) • If silent, then general standing (wikipedia)

18. Challenge of Agency Rule • Violation of APA or other procedural statute (2 years) – i.e. messed-up notice, comment, publish? • Ultra vires? – exceeded authority delegated by statute BUT always deference to agency action within delegated expertise • Violation of Constitution? • Irrational decision-maker? (arbitrary and capricious)

19. Grounds to Challenge Agency Adjudication • All of the same claims as rulemaking challenges, plus • Agency has erroneously interpreted or applied the law? • Insufficient evidence? • Agency’s order inconsistent with rule?