Administrative and Legal Processes for Environmental and Land Use Law

1. Administrative and Legal Processesfor Environmentaland Land Use Law Samuel W. Plauché Buck & Gordon LLP (206) 382-9540 splauche@buckgordon.com

2. Overview • Enacting environmental law • Legislature (state or federal): adopts statutes • Agencies (state or federal): adopt rules and policies implementing statutes • Enacting land use law • State Growth Management Act (GMA) • Local government GMA implementation • Increasing interface between environmental and land use law

3. Environmental Statutes • Federal statutes • Adopted by Congress • Examples: Clean Water Act, Clean Air Act, Endangered Species Act, CERCLA, RCRA • Often have state component/role • Typically delegate rulemaking, permitting and enforcement authority to agency, usually EPA • Other agencies often a consultation role under other statutes: e.g. NMFS, USFWS under ESA • Constitutional limitations: e.g. commerce clause

4. Environmental Statutes • State statutes: • Also adopted by legislature • Examples: Shoreline Management Act, State Environmental Policy Act, Hydraulics Code, MTCA • Also typically contain agency delegations (Ecology, Fish & Wildlife Service) • State agencies often have role in federal permitting (401 water quality certification, CZMA certification) • Constitutional limitations: e.g. taking of private property without just compensation

5. Land Use Legislation • Some state statutes: GMA, Planning Enabling Act, SEPA. State statutes provide overview, directive to local governments • Local government enactments: Actual rules “on the ground”: Comprehensive Plans and Development Regulations • “Bottom-up” approach

6. Procedural Legislation • Administrative Procedure Act: both federal and state statutes, each addressing agency rulemaking and judicial review procedures • Land Use Petition Act: provides judicial review of local land use decisions • Procedural components of substantive statutes: e.g. Clean Air Act, Shoreline Management Act, Growth Management Act • Procedural components of local ordinances: Hearing Examiner appeals, etc.

7. Agency Rulemaking • Under federal and state APA, process for adopting rules. Notice and comment procedure • Judicial challenge to final agency action: arbitrary and capricious, outside agency’s authority. Key: deference to agency action within its delegated expertise • Fine line between “filling the gap” and extending statutory coverage • Must stay within constitutional limitations

8. Agency Rulemaking • Examples of judicial intervention in agency rulemaking • Overreaching under statute: Clean Water Act Tulloch Rule, “addition of a pollutant” • Constitutional overreaching: Clean Water Act SWANCC decision, migratory bird rule

9. Land Use “Rulemaking” • Role of Department of Commerce, Trade and Economic Development (CTED) in GMA • Role of local governments in GMA adoptions • Role of Growth Management Hearings Boards

10. Land Use “Rulemaking” • Controversy with Growth Management Hearings Boards • Level of deference to local governments, before and after legislative changes • Inconsistency in level of scrutiny between Boards • Judicial review of Board decisions: who gets deference?

11. Land Use “Rulemaking” • Case study of Growth Management Hearings Board matter • Challenges to Kitsap County’s 1995, 1997 and 1998 Comprehensive Plans • Scope of Board review • Board “rulemaking” in decisions • Recent Supreme Court decision in Viking • Key: burden of proof

12. Agency Decisions • Permitting decisions – e.g. Clean Water Act permit, Forest Practice Approval, County zoning approval/building permit • Enforcement decisions – e.g. cease and desist/stop work orders, administrative or judicial enforcement actions, civil penalties

13. Appeals from Permit Decisions • Step 1: Administrative Appeals • May involve in-house appeal to agency • May involve administrative appeal boards (PCHB, SHB, etc.) • With local government, may involve lay board (planning commission, county/city council) • Step 2: Review by Courts • Key: deferential review on the record • Limitations on new evidence and new arguments • Appeal under federal or state APA, LUPA or specific statutes (e.g. Shoreline Management Act)

14. Where to Appeal? • Look at statute and agency rules • Exhaustion doctrine requires use of administrative appeals first • Can be confusing: e.g. appeal of a rezone and site specific comprehensive plan amendment. Lodge in both Superior Court and GMHB

15. Mechanics of Administrative Appeals • Mostly trial type proceedings - • Judge is ALJ, Planning Commission, Hearings Board, Hearing Examiner • Evidence usually presented (exception: GMHB) • Sometimes involve motion practice • Governed by APA and agency rules • Each independent appellate body has its own rules • APA applies otherwise • Rules generally default to civil rules of procedure

16. Typical Administrative HearingProcedure • Notice of appeal filed, first view of issues • Hearing body schedules prehearing conference • Further dates scheduled at prehearing conference • Issues refined at conference • Pre-hearing discovery and motion practice • Hearing

17. Settlement • Some administrative appeals settle • Reasons: • Strengths or weaknesses of appellant’s case • Cost of litigation • Time it takes to get a decision • Known result, rather than risk unknown (partial victory instead of complete loss)

18. Settlement • Can be difficult, particularly in land use cases • Parties often a group of individuals that have difficulty agreeing • Parties often in case for less easily valued reasons than monetary losses • Litigation costs often spread among members of group

19. Appeal Result • Generally reverse and remand or affirm • Deference to agency processes makes complete relief difficult (rather than sending it back to agency) • If not careful, could become repetitive loop

20. Why Costly/Time-Consuming? • Take an example of area-wide rezone going through all possible steps: • Start with application and staff recommendation (2 months) • Then to planning commission public process and recommendation (2-3 months) • Then to council for approval, possible remand (1 month) • Then to Hearings Board (6 months) • So, 1 year in process before getting to Court

21. Why Costly/Time Consuming • Area-wide rezone, judicial review • Appeal from GMHB to Superior Court (6 months) • Appeal from Superior Court to Court of Appeals (1-2 years) • Appeal from Court of Appeals to Supreme Court (1-2 years) • At the end of Supreme Court, remand to GMHB with possibility of another entire round • A better way: focus on solutions that avoid appeals

22. Enforcement Actions • Typically provide for administrative process (e.g. CWA EPA administrative order process) • Agency may go straight to judicial enforcement (e.g. CWA enforcement action) • Also potential for citizens’ suits under federal statutes (e.g. CWA, CAA and ESA) • Penalties, attorneys’ fees

23. Examples of Administrative Actions • Suncadia Master Planned Resort • GMHB component • PCHB component (water rights) • LUPA component • Continuing scrutiny and potential LUPA action

24. Examples of Administrative Actions • Shellfish permitting issues • Corps of Engineers’ cease and desist order for Coast’s oyster farm (pre-enforcement review prohibition) • Coast permitting and consultation process • Nationwide/regional permitting process • Corps rulemaking process on jurisdiction over shellfish issues • CWA citizen’s suit for Taylor mussel rafts