Environmental Law Professor Robert Glicksman
§ 702 of the APA – Ranchers claims also were reviewable under this provision
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- Other Threshold Barriers – Similar to Standing – See pp. 180–83.
- Exhaustion of Administrative Remedies
- Primary Jurisdiction
- Reviewability of Agency Actions
- Final Agency Action Reviewable/Section 704
- Failure to Act
| § 702 of the APA – Ranchers claims also were reviewable under this provision.
To determine zone of interest, we must look at violated provision, viz. “no jeopardy provision.” Purpose of this requirement is to avoid needless economic costs. Lesson – Standing is skewed, disfavoring beneficiaries of regulation. Scalia was very much in favor of citizen-suits and citizens acting in this regard—acting as private attorney generals. Contrast this with Scalia’s dissent in Laidlaw, where he foresaw grave implication for democratic governance form citizens acting as “self-appointed EPAs.” Prudential Limits on Standing Waivable by Congress. Plaintiff must asserts his or her own rights, not the rights of a third party. However, this may occur under associational standing. Plaintiff must not assert generalized grievances suffered by everyone or by a large class of individuals. Causation – Difficult to show a definite causal relationship. Redressability – Difficult to fashion a specific remedy when there is no specific injury. Separation of Powers – It is the job of the executive to redress generalized, societal problems. Overlap with Constitutional Requirements – Some issues are best resolved by courts, and others are best resolved by the political branches. “Concrete and particularized” requirement is the flipside of the generalized grievance standard. That harm is of wide public significance, it is not an abstract question and still may be capable of judicial resolution. Injury to all ≠ injury to none: some courts have held. If injury is concrete, then it should be able to overcome the generalized grievance test. This is the touchstone of standing. Standing Requirements for Suing in Federal Court Constitutional, statutory, and prudential requirements. Injury-in-Fact Concrete and particularized; and Actual or imminent (not conjectural or hypothetical). Plaintiff must establish a temporal nexus or temporal proximity between the alleged adverse consequences of the agency’s actions and the members’ imminent use of the resources adversely affected. Plaintiff may rely on a procedural requirement only if its violation is alleged to impair a separate concrete interest. Geographical Nexus – Lujan I. Temporal Nexus – Lujan II. Injury to the plaintiff, not to the environment. Laidlaw. Causation Contributing factors are enough. Massachusetts V. EPA. Redressability Incremental improvements are enough. Massachusetts V. EPA. Standing w/r/t Climate Change See Salzman 84. Massachusetts v. EPA (2007) MA is in a special position. Every state has a right to protect natural resources found within its territory. Therefore, MA’s interest in protecting its coasts demanded special solicitude from the Court. CAA created a procedural right whereby MA could satisfy the constitutional standing requirements because the causation and redressability requirements applied with less rigor. There must be only some possibility that the defendant will redress the alleged injury. It need not be certain. EPA argued that MA had only a generalized grievance. Court held that MA’s injury-in-fact was concrete and particularized because its land was being swallowed by the ocean. Any plaintiff losing land to rising sea levels will make strong arguments. Therefore, there is no threat to the adversarial system. Injury-in-Fact – Rising sea levels due to global warming affect Massachusetts’ coastal property. Injury-in-fact discussion has no relevance to cases in which a non-state is the plaintiff. This relates to the special solicitude afforded to Mass. Causation Many actors across the world, besides US autos, emit greenhouse gases. It is sufficient that the emissions at issue here are contributing to climate change and harming the plaintiffs’ interests. That they are a significant/major cause is not the right issue. Redressability Incremental steps are sufficient to satisfy redressability. Roberts did not believe that any constitutional standing requirements had been met. Characterized case as a return to SCRAP I. Purpose of Standing – To stop federal courts from infringing on political branches. This decision will impede that objective. Case reflects disagreement on the Court as to whether Congress can define injury-in-fact. Majority – Such efforts are legitimate. Dissent – Illegitimate. Other Threshold Barriers – Similar to Standing – See pp. 180–83. Generally Prevent courts from ruling on the merits. All are timing doctrines. All are very similar, and courts often confuse them. Thus, when they are raised, courts usually throw in the kitchen sink. Finality Agency action must be final in order to be challenged. Derived from APA, 5 U.S.C. § 704. “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” Exhaustion of Administrative Remedies Must pursue all available administrative hearings/remedies before taking recourse to federal courts. If you bring a cause of action based on APA 5 U.S.C. § 702, court may not dismiss it if statute requires exhaustion of administrative remedies and states the effectiveness of the agency action pending appeals, etc. § 702 – “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Primary Jurisdiction Applies when court and agency have concurrent jurisdiction. Court should wait until agency has completed its review of issue. Ripeness Courts defer on issues brought to them prematurely, i.e., before there is an actual case or controversy. Two Factors Are the issues fit for judicial resolution? Legal issues generally are, but factual issues usually are not. Would the plaintiff suffer hardship if the court refused to hear the case now? Reviewability of Agency Actions APA Provisions Relevant to Judicial Challenges to an Agency’s Failure to Act Section 702 allows a person adversely affected or aggrieved by “agency action” to seek judicial review. Section 704 makes final “agency action” reviewable. Section 551(13) defines “agency action” to include “failure to act.” Section 706(1) authorizes the federal courts to “compel agency action unlawfully withheld or unreasonably delayed.” Final Agency Action Reviewable/Section 704 – “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” Two Exceptions – “This chapter applies, according to the provisions thereof, except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” § 701(a)(1)–(2). Existence of agency discretion is sufficient to invoke. See § 706(2)(A). To preserve the integrity of abuse of discretion as a reason for invalidation, we must look to § 701(a). Courts usually find relevant “law to apply.” See Overton Park. Agency’s own output, e.g., regulations or land use plans, also may constrain agency discretion sufficiently to furnish necessary “law to apply.” See p. 202. Most often invoked to preclude review when a litigant challenges an agency decision not to enforce a statute or regulation. Congress rarely has precluded judicial review in environmental statutes. Norton v. Southern Utah Wilderness Alliance (2004) Two-Part Reviewability Standard – “A claim under 5 U.S.C.S. § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” “The limitation to discrete agency action precludes the kind of broad programmatic attack we rejected in Lujan I.” Failure to Act – Reviewable only if failure related to a discrete agency action that should have been taken. Defined as “failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13).” “A failure to act is not the same thing as a denial. The latter is the agency's act of saying no to a request; the former is simply the omission of an action without formally rejecting a request, for example, the failure to promulgate a rule or take some decision by a statutory deadline. The important point is that a ‘failure to act’ is properly understood to be limited, as are the other items in § 551(13), to a discrete action.” “The limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law (which includes, of course, agency regulations that have the force of law). Thus, when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency's discretion, a court can compel the agency to act, but has no power to specify what the action must be.” Result See note 3 on p. 209. Norton has incentivized agencies to create plans to general as to be meaningless. If your boss does not want to be constrained, avoid words like “shall,” “will,” “required,” “mandate,” etc. Use general language so as not to commit yourself to a discrete plan. 5 U.S.C. § 706 § 706(1) – “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” Applies to agency action not taken. Discreteness requirement applies here. See 5 U.S.C. § 551(13) (describing five categories of decisions involving circumscribed, discrete agency actions). Legal-requirement requirement applies only here. § 706(2) – “The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be . . . .” Scope of Review Question – Answer affects how well judicial review is able to hold agencies accountable, which entails ensuring that their actions are consistent with the statutes from which they are derived. Applies to improper agency action. Discreteness requirement applies here too. See 5 U.S.C. § 551(13) (describing five categories of decisions involving circumscribed, discrete agency actions). Legal-requirement requirement does not apply only here. Degree to which judicial oversight is appropriate depends on: Procedural reach; and Nature of case. Vermont Yankee Nuclear Power Corp. v. NRDC (1978) Courts may not impose on agencies additional procedural duties not contained in the APA. Agencies may voluntarily go beyond the procedural duties specified in the APA. Congress may impose additional procedural duties in substantive legislation. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) Facts – Involved Bubble Concept under the CAA. See notes for more factual details and how the Bubble Concept works. Chevron Deference Step Zero (Not in Case) – When does Chevron deference apply, or should judicial review of agency interpretation entail some other framework? Mead; see also Barnhart v. Walton (2002). Under Mead, an administrative interpretation of a statute qualifies for Chevron deference only when: Congress delegated authority to the agency generally to make rules carrying the force of law; and The agency interpretation being reviewed was promulgated in the exercise of that authority. Showing Requisite Delegation of Authority Clearest are explicit delegations of authority to resolve legal questions in adjudication or enact regulations using the notice-and comment process. Under this test, internal agency guidance documents do not qualify as rules that carry the force of law and are therefore not entitled to Chevron deference. If administrative interpretation is not entitled to Chevron deference, it still is entitled to some deference. Skidmore. Factors – “(1) the degree of the agency's care, (2) its consistency, formality, and relative expertness, and (3) the persuasiveness of the agency's position.” Mead. Produces widely varying results. Weaker than Chevron deference. Step One – Has Congress directly spoken to the precise question at issue? If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. Court is required to implement precise intent of Congress, regardless of agency’s view. Court may ignore agency interpretation. Sources for Statutory Interpretation – See p. 189. Text of specific provisions of statute. Other provisions of statute in question. Provisions of other statutes that may shed light on meaning of the statute under scrutiny. Statutory objectives. Legislative history. Lower courts have discretion in determining which sources of law to consult. Supreme Court has been inconsistent. Step Two – If the court determines that Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. If statute is unclear, Court must accept any permissible interpretation of the statute offered by the agency. Factors Affecting Judicial Deference – See pp. 189–90. The more technical the questions, the more likely that the court will defer to agency. Broader Context – If an agency opposed a statute initially, court may determine that its interpretation is not entitled to deference. Constitutional implications of agency’s interpretation. Justifications for Chevron Deference If the Court selects among various interpretations, then the level of judicial interference rises. Congress is not assured of its own competence in specifying the nitty-gritty details of the enabling act. Congress, however, does have the authority to determine that the agency will be able to interpret the statute. Federal judges are not elected, and agency officials are appointed by elected officials. Agencies thus have indirect accountability to the public, unlike judges. We prefer to have this accountability for those offering definitive interpretations of statute. Glicksman’s Agency Deference Flowchart Whether interpretation is made pursuant to a congressional delegation of lawmaking authority. Chevron; Mead. Whether agency is applying special expertise. Skidmore. Whether interpretation is consistent with larger public norms, including constitutional norms. Gonzales. Citizens to Preserve Overton Park, Inc. v. Volpe (1971) Test for an Action Committed to Agency Discretion by Law – What triggers a § 701(a)(2) bar to review? Only if there is no law to apply is a decision committed to unreviewable agency discretion. This is a narrow test, and it does not apply in many circumstances. Law came from § 4(f) as well as underlying purposes of statute. Park preservation is the desired goal of the statute. Secretary’s actions were reviewable to determine whether he had acted inconsistently with the law. Courts rarely dismiss on § 701(a)(2) grounds because there is almost always some law to apply. Standard of Review Six Different Standards See § 706(2)(A)–(F). Court examines three in-depth. If Court applies a stringent standard, it runs the risk of infringing the authority of Congress and the president. Does not want to tread on president’s duty to execute the laws or Congress’ authority to delegate authority to an agency. If Court applies a very deferential standard, it may abdicate its responsibility when Congress has authorized judicial review. De Novo - § 706(2)(F) Agency determination must not have been “unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.” § 706(2)(F). Least deferential standard. Available in a narrow set of circumstances. Agency’s action was adjudicatory in nature, and its factual findings were inadequate. It is very difficult for cases to fit within these circumstances. Section 706(2)(f) review is almost unheard of. Preferred standard of review for petitioners. Substantial Evidence - § 706(2)(E) Agency determination must not have been “unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute.” § 706(2)(E). Court requires formal rulemaking or formal adjudication for substantial evidence standard to apply. This was not the case here. The only cases in which § 706(2)(e) is invoked are when §§ 556-57 are triggered. Special language is required. Second-best standard of review for petitioners. Arbitrary and Capricious Standard - § 706(2)(A) Agency determination must not have been “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 706(2)(A). More deferential than substantial evidence review. Factors to Consider Must consider “whole record” as required by § 706. Whether agency thought about correct factors under statute? Whether agency made a clear error of judgment in reaching its ultimate determination? Did agency act rationally? State Farm. Four factors: Whether agency relied on factors that Congress intended to be irrelevant. Whether agency failed to consider an important aspect of the problem. Whether agency ignored a key piece of evidence. Whether agency reached a drastically implausible decision such that it could not indicate a mere difference in viewpoint. Witnesses/Participating Administrative Officials – Because Court did not know enough about agency’s decision-making process to determine whether it had acted irrationally. May not consider post hoc rationalizations. Most EPA decisions are governed by this standard. Applied by Court. Practical Implications No interstate that runs through the middle of the city because the agency could not show any feasible alternative. Created strong incentives for agencies to compile more thorough records to support their decisions. Reduces risk of reversal because of not acting rationally. When adjudicating cases, courts are deluged with records. Methods for Ensuring Agency Accountability Congress Restricting president’s authority to hire and fire agency officials and imposing restraints thereon. Increasing or decreasing or agency appropriations. Holding agency oversight hearings, which may embarrass agency officials. Amending substantive legislation so as to reverse agency results or restrict agency discretion. Applying statutes across many substantive areas and changing the subjects of agency action or the methods by which those subjects are regulated. E.g., Information Quality Act. Designed to ensure that agencies rely on objective and reliable information in their decision-making. This constrains agency action. Some think that the Act gives regulated entities an avenue for challenging agency action as out-of-compliance with objective and reliable information. Courts have held that Information Quality Act challenges are not reviewable in court. President Issue executive orders providing ground rules for administration of federal government. Two Functions Cause agencies to consider certain factors or satisfy certain substantive requirements before making decisions. Require agencies to clear certain actions with presidential appointees before enactment. Mandate for agencies to use cost-benefit analysis. Executive Order 12291 (12866). Agencies must do so unless their enacting statutes prohibit this. Executive Order 12866 – When agencies issue new major regulations, OMB must clear regulations for publication before they may be implemented. Agencies often must supply analysis even if it need not change the agencies’ decisions. This results in slower decision-making (because the agencies have more work to do). Do executive orders violate separation of powers? Can president control exercise of discretion that Congress has delegated to agencies? Many orders bypass this problem by stating that they apply to agencies only as far as allowed by law, i.e., agencies’ originating statutes. Statutes trump inconsistent executive orders. Executive Order 13563 – Obama. Published in 2011 Fed. Reg. at page 3821. Agencies must consider approaches that reduce harm and burdens to public. Instead of issuing regulations, agencies must consider, e.g., offering warning to regulated entities or requiring information disclosure. What may have been a good idea at one time may not be a good idea today. Agencies must go back periodically and review the regulations that they have made. Review of agency decisions by OMB creates a bias against regulation. OMB itself is vulnerable to capture by regulated entities, and its economist staff inherently are skeptical of regulation. Therefore, OMB has failed to promote rationality in agencies’ environmental decision-making. OMB review is a poor means of securing agency accountability. National Environmental Policy Act No substantive mandates. Cross-cutting legislation. Courts review only procedural compliance. Two Main Purposes We want people to have information about the potential adverse effects of government action on the environment. To force government decision makers, i.e., agencies, to think about the potential adverse environmental consequences of their actions. “Stop and think” statute. Action-forcing component of NEPA. To disclose what the agencies have thought about to the public. Full-disclosure component of NEPA. Kind of like a sunshine law. Reveal to the light of day the results of the action-forcing component. Scope Federal agencies, not private entities. Facially, all federal agencies; but in practice, federal agencies concentrating on resource development or similar projects. Agencies prone to tunnel vision, i.e., lacking the inclination to factor environmental concerns into their decisions. Agencies that sweep environmental concerns under the rug. Agencies that usually judge success by output, which typically related to development (as opposed to conservation). NEPA counteracts this tendency. E.g., DOT; Army Corps. Of Engineers; Forest Service. International/Extraterritorial Impact – See pp. 267–69; E&E 135–37. Council on Environmental Quality (CEQ) Only enforcement mechanism. Supervises NEPA compliance of all federal agencies. Issues instructions on how to comply with NEPA. Courts defer to CEQ’s interpretations of NEPA. Key Provision - § 102(2)(C). “The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on . . . (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” 42 U.S.C. § 4332. Requires “detailed statement,” i.e., environmental impact statement (EIS). Required for “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” Two Main Issues – Whether agency considered: Any adverse environmental effects which cannot be avoided should the proposal be implemented; and Alternatives to the proposed action. “To the fullest extent possible” – NEPA (1) does not change agency statutory mandates and (2) ensures across-the-board compliance. Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97 outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 Download 0.53 Mb. Share with your friends:
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