Civil litigation Note – OPCA of 1990 allows civil suits against industry actors. Downsides?

1. What alternatives to agency regulation are there? How could we deal with disasters/control of private Actors other than having agencies regulate? • Civil litigation • Note – OPCA of 1990 allows civil suits against industry actors. • Downsides? • Congress could do more of the heavy lifting on regulation via laws – would be more accountable because are elected • Downsides?

2. Where does the Secretary get the authority to impose the drilling moratorium? • OSCLA, 43 USC § 1334(a)(1)(B) – Sec’y authority to suspend “any operation or activity . . . pursuant to any lease or permit . . . if there is a threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life), to property, to any mineral deposits (in areas leased or not leased), or to the marine, coastal, or human environment. • 30 CFR § 250.172(b) - The Regional Supervisor may grant or direct an SOO or SOP . . . when activities pose a threat of serious, irreparable, or immediate harm or damage. This would include a threat to life (including fish and other aquatic life), property, any mineral deposit, or the marine, coastal, or human environment. . . . • So the Sec’y has the authority to suspend drilling operations in certain circumstances.

3. Why did Hornbeck plaintiffs challenge the Secretary’s decision? • Bases: • Practical • Legal Argument • Is it wise to allow substantive challenges of agency decisions or should control be left to Congress/executive branch? • Note both APA & OCSLA have right to sue provisions (don’t worry about which applies right now) – so P’s seem to be entitled by statute to sue in certain instances • What are disadvantages of such lawsuits? • What are the advantages?

4. Why did the DCT reverse the Secretary’s Decision to impose the moratorium? • DCT held that Secy’s decision to impose a moratorium was “arbitrary and capricious” under APA. • Why – doesn’t the OSCLA and regs give the agency the authority to suspend operations if they pose a threat to life property, etc? • Is this just a case of the court disagreeing with the agency and imposing its own views? Or is the court requiring something else of the agency besides that it agree with the agency’s decision? • Why would the court engage in such review?

5. Summary of General Administrative Law Framework • After this discussion of the regulatory aspects of the BP incident, we can see that administrative law consists of those legal principles that: • Define agency structure • Define the powers of agencies • Specify the procedural formalities agencies use • Determine the processes of agency decisions • Outline the role of the various entities interacting with agencies including: • Congress • The executive branch • The reviewing court • Regulated entities/individuals

6. This Discussion Also Highlights Various Sources of Administrative Law – more to be revealed during the semester • Constitutional Law • Separation of Powers - control of agency & sources of agency power • Procedural Due Process – what must agency do/process to follow • Administrative Procedure Act (APA) – passed in 1946 • Prescribes procedures and a framework for judicial review • Organic/Enabling Statutes • Statutes establishing agencies/defining mission – sometimes also prescribe procedures • Other Statutes • Generally applicable statutes imposing requirements on all agencies – e.g., FOIA, NEPA, etc. • Federal Common Law • Mostly created prior to the APA (occasional reference back) • Regulations • Rules passed by agency to enforce a statute – see Code of Federal Regulations (“C.F.R.”)