Part 1 – Pleading an Administrative Law Case

The best way to review and synthesize our readings is to see how you would use them in practice. You have read materials on jurisdiction and venue and the basics of standing. In the following video, I do a detailed analysis of the original complaint in a typical administrative law case. The plaintiffs are NGO environmental groups, the defendants are the Secretary of the Interior, the Assistant Secretary, and the department itself. The claim is that the agency acted in an arbitrary and capricious manner by allowing the leasing of offshore lands for oil exploration and production without an adequate Environmental Impact Statement. We are looking at the general procedural and pleading issues, not the specific details of the NEPA violation. You should learn the order of the complaint and the basic issues you have to establish to state your case. (This should be a review of material you covered in Civil Procedure, with the specific administrative law focus.)

Video – Analysis of an Original Complaint in an Administrative Law Case (NEPA)

Annotated complaint reviewed in the video – 2023 Adlaw – Friends of the Earth v. Haaland

Court opinion – Friends of the Earth v. Haaland – Opinion (27 Jan 2022) – annotated copy

Just look at the footnotes on pages 11&12 – the Court found that the general statements that members of the organizations recreated and visited the Gulf was enough to satisfy standing.

In contrast, we are going to look at a 5th Cir case on nearly the same standing facts and see what it looks like when a court wants to deny standing to plaintiffs.

Review the highlighted portions – Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102, 2019 WL 4126355 (5th Cir. Aug. 30, 2019

This is the court’s order dismissing the case based on not finding that the plaintiffs had standing. I have highlighted the key sections so you can scroll through and review the court analysis. The key is that the court rejects claims that point source pollution from rigs affects the entire Gulf. This discussion starts on page 7. The failure to do a proper NEPA review is a procedural rights claim, subject to the relaxed standards for injury in procedural rights claims. Despite this, the plaintiffs fail because the nature of rigs in the Gulf makes it difficult for individuals to show a nexus between a discharge by a specific rig and their injuries proximate to that rig. This allows EPA to escape citizen suit review even if it issues a bad permit. The lesson is to not file an environmental case in the 5th circuit if you can avoid it.

Part 2 – A Deep Dive into Mass. v. EPA

Video – Introduction to our deep dive into Mass. v. EPA

Climate change is the most important long-term regulatory problem facing the United States. Massachusetts v. EPA, 549 U.S. 497 (2007) is the key standing that allows citizen groups to get into court on federal climate change cases. (Mass. v. EPA also has a major section on whether GHGs are properly regulated under the Clean Air Act. We are not reading that section for this class.) It is also a good illustration of the problem of getting standing for widespread injuries, as well as the process of petitioning for a rulemaking. We are going to start with a brief look at the state of the scientific understanding of the role of human greenhouse gas (GHG) emissions in causing climate change at the time this case was argued before the Supreme Court. The Intergovernmental Panel on Climate Change (IPCC) is the United Nations body for assessing the science related to climate change. The IPCC has been surveying the scientific literature and preparing synthesis reports on the science of climate change since 1988. We are going to look at the report that was published in 2007, which would have been available in draft form when the case was argued:

IPCC Climate Change 2007: Synthesis Report

Read through p. 5.

One of the important standing facts in Mass. v. EPA is the effect of climate change on coastal property. Massachusetts has a long coastline with Boston on the coast and valuable beachfront property. Louisiana is the most at-risk state for land loss due to sea level rise secondary to global warming. The next presentation reviews the key information from the IPCC report and shows the potential impacts of sea level rise on coastal property, with special emphasis on Louisiana. Now that we are in hurricane season again, this will also give you a better understanding of why Louisiana is so prone to catastrophic hurricane surge damage. This is relevant to materials on suing the government in Week 7.

Video – Chapter 6: Climate Change Background for Mass. v. EPA

PowerPoint – Climate Change Background for Mass. v. EPA

The case began when the petitioners submitted a petition for rulemaking under APA § 553 (e) to the EPA, asking it to make a rule controlling greenhouse gases (GHGs). The APA provides that each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. This is the text (not a scan of the original document) of that petition:

PETITION FOR RULEMAKING AND COLLATERAL RELIEF SEEKING THE REGULATION OF GREENHOUSE GAS EMISSIONS FROM NEW MOTOR VEHICLES UNDER § 202 OF THE CLEAN AIR ACT

Scan through this to see the format. It is a simple document that begins with the requested regulation, then the parties who are requesting the regulation, then the legal justifications for the request.

The EPA answered the petition saying that it did not have the legal authority to regulate GHGs and that even if it did have the authority, it did not think it would be good policy to regulate them. The petitioners then challenged the EPA ruling in Cir. Court, arguing that the agency did have the authority to regulate GHGs. The Circuit Court upheld the EPA action, but did not address the standing issue:

Massachusetts v. E.P.A., 415 F.3d 50 (D.C. Cir. 2005)

Read the highlighted text on pp. 9-10. The court reasoned that if it found that the EPA action was proper, it would not have to resolve the standing issue.

Petitioners then filed a writ of certiorari seeking review by the Supreme Court.

EPA Response Brief to Writ of Certiorari in Mass v. EPA (edited for standing argument)

Read this excerpt from the brief. This sets up the issues for the Supreme Court review of standing. We are now going to listen to the arguments before the Supreme Court on standing:

Oral argument in Mass v. EPA (Oyez)

The petitioner’s standing argument starts at 0 (beginning of the recording to 17:55. The EPA response starts at 27:00 and runs to 45:20. If you have not used Oyez before, it links the written transcript of the oral argument to the audio. It also identifies the judges speaking to make it easier to follow the argument. The argument is excellent. When you read the Supreme Court opinion you will see how the questions from the argument end up in the majority and dissenting opinions. There is a bitter split in the court over the standing issue. All of the conservative judges except Kennedy opposed standing in the opinion. Kennedy is gone and the new judges are likely to join those who opposed standing. This is at issue in a Supreme Court case decided last Friday and another expected this week. We will review the extent to which state standing in Mass. v. EPA changes next week when, hopefully, both cases will have been handed down.

We will finish our reading with the standing discussion in the majority and dissenting opinions in the case:

Massachusetts v. E.P.A., 549 U.S. 497 (2007) (edited for standing)

Video – Chapter 6: Massachusetts v. E.P.A.: Standing – Majority Opinion

PowerPoint – Massachusetts v. E.P.A.: Standing – Majority Opinion

Video – Chapter 6: Massachusetts v. E.P.A.: Standing – The Dissent

PowerPoint – Massachusetts v. E.P.A.: Standing – The Dissent

Resource Documents for Mass. v. EPA

Memo from EPA counsel Cannon finding that the Clean Air Act gave the EPA authority to regulate GHGs.

If you are interested, this is the EPA general counsel memo that was at issue in the case.

Part 2 – Finish Chapter 6

Video – Chapter 6 – Finality

PowerPoint – Chapter 6 – Finality

Video – Chapter 6 – Exhaustion of Remedies

PowerPoint – Chapter 6 – Exhaustion of Remedies

Video – Chapter 6 – Ripeness

PowerPoint – Chapter 6 – Ripeness

Study Guide – Chapter 6

Part 3 – Chevron and the Review of Agency Discretion

Chevron, from Chevron U. S. A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) has become shorthand for the test traditionally used by the Supreme Court to evaluate whether an agency has exceeded the will of Congress in enforcing a statute. Congress charges agencies through its legislation to address major problems such as pollution or assuring that airlines are operated safely. The legislation can only provide an outline of what the agency needs to do. This is for three major reasons. First, most problems require research to determine what needs to be done. When the Clean Air Act was passed, Congress did not know which pollutants were most dangerous and what were safe levels for the regulators to set as standards. This required years of research and much public input. Second, problems change over time. New chemicals are brought onto the market, airlines move from propellor planes to jets, COVID breaks out and agencies must react much faster than Congress can pass new laws. Finally, Congress often pushes controversial decisions to agencies because Congresspersons do not want to have to explain to voters why they made an unpopular decision. For example, Congress wants the FEMA-run National Flood Insurance Program to lose less money on the policies it writes. But when FEMA raises the rates to reflect the risk it is insuring, Congress holds hearings on why the public is being charged so much money for flood insurance.

This becomes a judicial problem when the agency policy is challenged and the Court has to decide whether the agency acted beyond the authority granted by Congress. The Chevron standard is that the Court should defer to the agency’s interpretation of the statute at issue, as long as the statute is ambiguous and the agency’s interpretation is reasonable. Chevron’s deference to the agency is not partisan – it makes it easier for agencies to regulate, or to choose not to regulate, benefiting the political aims of whoever is in the White House.

At its core, the Chevron debate is over separation of powers. Chevron supporters see deference to the agency as a critical protection of Executive power – the power of the President to enforce the laws. Reducing deference shifts power from the President to the Supreme Court, making it the enforcement policy maker which resolves ambiguous statutes. Some members of the Supreme Court want to eliminate agency discretion as much as possible, requiring Congress to pass detailed statutes that direct the agency’s every action. Others recognize that this is really an attack on agency enforcement power because it is impossible both politically and technically for Congress to pass sufficiently detailed legislation and amend it constantly to account for changing conditions.

Next week we will look at the recent Supreme Court case of West Virginia v. EPA and its impact on the future of Chevron. It is rooted in Brown and Williamson, which we will look at in detail. It does not overrule Chevron. Instead, it ignores Chevron.

Read Chapter 7 to the first full paragraph on p. 285.

Read this edited version of Chevron to see what the Court itself is saying about the Chevron Test:

Chevron – Edited for Adlaw Class

Video – Chapter 7 – Introduction

PowerPoint – Chapter 7 – Introduction

Video – Chapter 7 – Chevron

PowerPoint – Chapter 7 – Chevron

We are going to take a hard look at FDA v. Brown and Williamson, the FDA tobacco regulation case. This was an attempt by the FDA to regulate tobacco through regulations based on the clear language of the Food, Drug, and Cosmetics Act. This is an example of how the Court applies the Chevron test to a hard case where the statute was clear, but there was evidence that Congress assumed – but did not include in the statute – that it would not apply to tobacco. I will review the history of the FDA as an example of how Congress responds to a crisis by writing a new regulatory law. This drives many of our most important – there is a public crisis and Congress responds with legislation. Sometimes we get the FDA and food and drug safety. Sometimes we get poorly thought-through laws passed in a hurry that have bad unintended consequences.

I have prepared a detailed interlinear analysis guide to the case to help you learn how to read a case closely: FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 ( 2000) – HTML  – Word (best viewed in outline mode)

I have annotated this case to show you how to read a case closely as you would have to if you were briefing the issues on an appeal or challenging them in a new proceeding. I am not going to go over the case in this detail for class – that would take hours– and I do not expect you to memorize the detail for an exam. But you should read it closely all the way through to see how the case flows and the interplay of majority and dissent.

Video – Chapter 7 – Regulatory History of Tobacco

PowerPoint – Chapter 7 – Regulatory History of Tobacco

Video – Chapter 7 – The FDA and Tobacco

PowerPoint – Chapter 7 – The FDA and Tobacco

Read to III. ARBITRARY AND CAPRICIOUS REVIEW (Funk 308)

King v. Burwell – edited excerpt

This is an edit of one of the ACA cases. We are looking at it as an example of a unique theory that some agencies do not have the appropriate expertise to merit deference.

Video – Chapter 7 – Applying Chevron

PowerPoint – Chapter 7 – Applying Chevron

Video – Chapter 7 – Substantial Evidence Review

PowerPoint – Chapter 7 – Substantial Evidence Review

(Monday, June 19th is a federal holiday and there are no classes.)

Assignment – Documentary on Rulemaking

Now that you have learned the basics of notice and comment rulemaking, we are going to look at rulemaking in action. This is PBS documentary about a rulemaking that took place in the late 1970s. The EPA was required by the courts to make rules to implement amendments to the Clean Air Act (CAA) that were intended to protect the views in the Grand Canyon and other national monuments from being obscured by pollution. While this rulemaking took place more than 40 years ago, the fights over these rules continue today, and Grand Canyon is still fouled with air pollution. This park service webcam shows a live view of the Canyon. If you select the Clear/Hazy tab, you can see the contrast between a clear day (when the winds blow the pollution away from the park and flying tours are limited) and a hazy day (when the conditions are less favorable and the pollution builds up in the park):

https://www.nps.gov/subjects/air/webcams.htm?site=grca

A major source of pollution in the park in the 1970s was the emissions from coal-fired electric generating plants. The largest was the Navajo generating plant. Over the past decade, the low price of natural gas has undercut the cost of energy generated by coal. Many coal-fired power plants have closed as utilities seek lower-cost electricity. Shifting to natural gas also reduces their carbon footprint because natural gas produces less carbon dioxide produced per kilowatt of electricity than does coal. The Navajo plant was closed in 2019 and was demolished starting in 2021. Unfortunately, other sources of pollution discussed in the film have increased.

The documentary starts with the park ranger whose pictures of the Grand Canyon stimulated environmental groups to lobby for amendments to the CAA. This was a period in US politics that is difficult to imagine today. Broad-reaching environmental laws with ambitious goals had bipartisan support in Congress. Most of the major environmental laws, including the law that pulled the various free-standing pollution agencies into the EPA, were passed during the Nixon administration. Several had the support of Nixon, who hoped to win the support of liberals who opposed him on the Vietnam War. The documentary shows a Congressional hearing with several Congressmen who were the authors of our basic environmental law framework. The bipartisan support for environmental laws was at the same time that Congress and the country were bitterly divided over the Vietnam War and the Civil Rights movement.

The documentary then shifts to the air pollution division of the EPA and the process of drafting the regulations. While the documentary was recorded over 40 years ago, the basic process is essentially the same today. The major change is that today the courts are now much more particular about the published record for the rule, making the drafting process longer and more complicated. Note the arguing over what the vague words in the statute would allow the agency to do in the regulations. We will think more about that when we look at the judicial review standards for ambiguous rules. Also, note the involvement of the Carter White House. The agency was facing both a court-ordered deadline and a political deadline. Carter was mired in the Iranian Hostage Crisis and far behind Ronald Regan in the polls. Regan was to end the bipartisan support for environmental laws, and the agency was concerned that if they did not get the rule finalized before the end of the Carter Presidency, it would be watered down by the Regan administration. (The Regan administration could not completely withdraw the rule because the statute required the agency to make the rule.)

While not required by the APA, the EPA had public hearings on these regs, as well as taking written comments through the usual APA notice and comment process. The hearings were held in the western states most affected by the regs. The bitter testimony against the regs and the EPA could be ripped from today’s headlines. The difference is that in 1979, the fight was over assuring a supply of cheap fossil fuel. Today the fight is over climate change.

As background, in 1973 the country had suffered a gasoline shortage and long lines at the pumps. This was caused by the newly formed OPEC embargoing oil exports to gain control of the market. While that embargo was short-lived, by 1979 OPEC had pushed crude oil prices up 10-fold to $25 a barrel, equivalent to about $100 today. By 1980, they reached their peak at about $140 a barrel in today’s dollars. At that point, OPEC’s power declined as new sources of oil were developed. But no one knew that would happen in 1979.

The fear of another OPEC boycott, combined with the ever-increasing cost of oil led to programs to make gasoline from coal, as Germany had done during WWII when it was cut off from oil imports. This comes up in some of the testimony. As a college student, I participated in earlier CAA hearings, which I can report resembled those in this documentary.

After the hearings and reviewing the public comments, the agency is forced to modify its original rule and to redo some of the background record to be published in the FR. It finally gets the rule finalized – in record time – before Carter had to leave office. This is a revealing look at the agency process and it is unlikely we will ever see another like it. Some of the participants, such as Jim Hawkins, went on to become leaders in the public environmental movement after leaving the government. I have not been able to find out what happened to the photographer who started it all.

One invaluable part of the documentary is the coverage of the lawyers who represented the electric power industry whose coal-fired power plants would bear the brunt of the regulatory costs of these rules. You can see how they represented their clients’ interests and how they interacted with the agency lawyers. You should also note the difference in the office settings between the EPA staff and the industry lawyers.

Video – The Regulators: Our Invisible Government (CSPAN)

---

Reading Assignments

Part 1

Read Chapter 5 to C. The Procedures for Formal Rulemaking p. 176.

Video – Chapter 5 – What have we learned from The Regulators?

PowerPoint – Chapter 5 – What have we learned from The Regulators?

Video – Chapter 5 – Do You Have to Have Notice and Comment? 

PowerPoint – Chapter 5 – Do You Have to Have Notice and Comment?

Read Chapter 5 from C. The Procedures for Formal Rulemaking p. 176. to D. The Procedures of Notice-and-Comment Rulemaking, p. 180.

What do Formal Rulemakings look like – the Peanut Butter Saga

Before Ralph Nader there was the Peanut Butter Grandma – There is no video documentary about formal rulemaking, but there is the story of the fight over making a rule through formal rulemaking to define what could be sold as peanut butter. It is also a great human interest story. Ruth Desmond was a housewife who became the first consumer advocate to fight in the administrative law arena. She started in the 1950s, before Ralph Nader and the world of NGO (non-governmental organizations) advocates.

Her personal story – Veteran of the Peanut-Butter War

A brief review of the legal fight – Why Midcentury Lawyers Spent 12 Years Arguing About Peanut Butter

(Optional) NPR podcast, the third in a three-part series about the peanut butter saga and the role of the Peanut Butter Grandma. (The complete series and supporting information.)

Read E.Procedures for Rules Not Subject to Formal Rulemaking or Notice-and-Comment Rulemaking, p. 187 to 1. Executive Orders, p. 199.

Video – Chapter 5 – Other Exemptions from Notice and Comment Requirements

PowerPoint – Chapter 5 – Other Exemptions from Notice and Comment Requirements

Video – Chapter 5 – Other Forms of Rulemaking, Constitutional Issues (Vermont Yankee), Ex Parte Communications 

Powerpoint – Chapter 5 – Other Forms of Rulemaking, Constitutional Issues, (Vermont Yankee), Ex Parte Communications

Part 2

Finish Chapter 5. Review Chapter 2. The material on a. OMB/EO Review and b. b.Independent Regulatory Agencies (p. 66 – 69).

The objective of this assignment is to make you familiar with the basics of the regulatory review process. You should know the reasons why it is important, who carries it out, and the basic requirements to satisfy OIRA. You do not need to know the details of cost-benefit analysis. You should know the basic principle that regulations should provide more benefits than costs, that it is more difficult to monetize benefits and costs, and that benefits in the future have a lower value than immediate benefits.

The Regmap – a Review of Informal Rulemaking

This is a graphical review of informal rulemaking. I have used parts of it in the presentations.

Video –  Introduction to Cost-Benefit Analysis

Video – Cost-Benefit Scenarios

Video –  Discounting the future

These are three short videos that introduce the fundamentals of cost-benefit analysis for those of you who are not with CBA analysis from your other studies. Discounting the future discusses the problem of deciding how much to spend today to prevent problems in the future. This is a core question in rules to mitigate and adapt to climate change.

A short news item I discuss in the CBA introduction below: NBC News: How a single new Alzheimer’s drug could blow up the federal budget.

Video – Chapter 5: Cost/Benefit Analysis Background for Regulatory Review

PowerPoint – Chapter 5: Cost/Benefit Analysis Background for Regulatory Review

Video – Chapter 5: Executive Order and Statutory Requirements for Reviewing Rulemaking

PowerPoint – Chapter 5: Executive Order and Statutory Requirements for Reviewing Rulemaking

Part 3

Read Chapter 6 to 3. Prudential Standing, p. 235.

Much of this assignment should be a review of materials on standing that you covered in Constitutional Law I. I am reviewing this material to make sure that everyone has the same base knowledge. We are going to see these doctrines again as we read cases and pleadings as we work through the remainder of the course.

We will take a deeper dive into standing next week.

Video – Chapter 6 – Introduction and Statutory Jurisdiction

PowerPoint – Chapter 6 – Introduction and Statutory Jurisdiction

Video – Chapter 6 – The Injury Test for Standing

PowerPoint – Chapter 6 – The Injury Test for Standing

Video – Chapter 6 – Probabilistic Risk and Fear as Injury for Standing

PowerPoint – Chapter 6 – Probabilistic Risk and Fear as Injury for Standing

Video – Chapter 6 – Procedural Injuries

PowerPoint – Chapter 6 – Procedural Injuries

Video – Chapter 6 – Causation for Standing

PowerPoint – Chapter 6 – Causation for Standing

“Prudential” tests, such as zone of interest, are confusing. We are going to take a hard look at Lexmark, which is the most recent Supreme Court case to review prudential standing and zone of interests. The Lexmark Court attempts to simplify the notion of prudential standing. Perhaps more importantly, the Justices express their skepticism about the importance of these tests.

Edited – Lexmark International, Inc. v. Static Control Components, Inc. , 134 S.Ct. 1377 (2014)

I have heavily edited Lexmark. While the book mentions Lexmark, it does not integrate Lexmark with the previous zone of interest cases. While zone of interest analysis is not dead, it is now just another statutory construction tool.

Lexmark Oral Argument – Start at 19:15 and listen to the end. (you can search for – couple points about the zone of interest – to go to that point.)

Supreme Court oral arguments have been recorded for decades. They provide examples of oral advocacy at the highest level and they provide insights into the judges thinking that may not appear in the published opinions.

Read Chapter 6 to IV. Problems of Timing, p. 252.

This includes the discussion of the zone of interest cases, which you should read with Lexmark in mind.

Video – Chapter 6 – Exceptions to Judicial Review/Committed to Agency Discretion by Law

PowerPoint – Chapter 6 – Exceptions to Judicial Review/Committed to Agency Discretion by Law

Video – Chapter 6 – Zone of Interests

PowerPoint – Chapter 6 – Zone of Interests

Adlaw in the News – What is the ALJ Controversy?

This is a continuing news item. The case was decided last summer, but it is now on cert. review to the Supreme Court, so we do not know how it will come out. We are looking at this case and the controversy over the status of ALJs – employee, inferior officer, or what – as a review of some of the topics covered in Chapters 1-3. You are not responsible on the exam for the specific cases or law in this item, but you should view the video and review the materials as a review of concepts from our previous readings.

Video – Adlaw in the News: 5th Circuit Panel finds ALJ system unconstitutional 

These are the annotated documents from the video:

In the Matter of John Thomas Cap. Mgmt. Grp. LLC, d/b/a Patriot 28 LLC; & George R. Jarkesy, Jr., Release No. 5572 (Sept. 4, 2020)

Jarkesy v. Sec. & Exch. Comm’n, 34 F.4th 446 (5th Cir. 2022) – majority opinion

You should take a look at the annotated sections of the dissent, which were mentioned, but not reviewed in the video:

Jarkesy v. Sec. & Exch. Comm’n, 34 F.4th 446 (5th Cir. 2022) – dissent

Assignment – Part 1

Introduction

This week we are reading less about the technical legal issues in administrative law and looking harder at what administrative law looks like in real life. We are going to watch one of the only two documentaries that have been made about the US administrative law system. (We will watch the second next week.) We are also going to do a deep dive into the most common ALJ adjudications, Social Security Disability Insurance (SSDI) determinations. The constitutional due process requirements for terminating benefits were litigated in the Mathews case. The Supreme Court has not explicitly overruled Goldberg, but since the Goldberg welfare system is gone, Goldberg is now a historical footnote. In contrast, Mathews has become one of the most important constitutional law cases on due process in all areas, not just SSDI determinations.

The Mathews case sets up an explicit balancing of costs and benefits to determine what process is due in administrative adjudications. This is a foundational case in constitutional and administrative law. Before reading Mathews, we are going to learn some background information on the Social Security Disability System.

Video – Introduction to Social Security Disability Insurance

PowerPoint – Introduction to Social Security Disability Insurance

For more info, also see: Supplemental Security Income Home Page — 2022 Edition

Next, we are going to read the background story of Mathews v. Eldrige. This chapter was written nearly 30 years after the case was decided. Since this time, the Social Security Disability system has significantly expanded, most recently as the 2008 recession drove many middle-aged people with some level of disability out of the workforce. The SSD system has been modified since the Mathews case, but the basic structure of the system is still close to what is described in Mathews and this article.

Farina, C. R. “Due Process at Rashomon Gate: The Story of Mathews v. Eldridge.” Administrative law stories, ed. P. Strauss (2006). (Moodle link)

Now we will read the case itself:

Mathews v. Eldridge (edited version)

Video – Mathews v Eldridge (1976): Getting to the Supreme Court

PowerPoint – Mathews v Eldridge (1976): Getting to the Supreme Court

Video – Mathews v Eldridge: The Supreme Court and the Mathews Analysis

PowerPoint – Mathews v Eldridge: The Supreme Court and the Mathews Analysis

Finish reading Chapter 4

Video – Chapter 4: Applying Mathews

PowerPoint – Chapter 4: Applying Mathews

Video – Chapter 4: Bias in Administrative Hearings

PowerPoint – Chapter 4: Bias in Administrative Hearings

Assignment – Part 2

A major objective of this course is to show you how the administrative system works. You cannot learn this by just reading cases and statutes. Our deep dive into Matthews shows the problems in running a disability benefits program whose enabling legislation and assumptions diverge from the actual workplace. The claimant’s credibility – in theory – is not an issue in SSDI determinations because they are based on written medical records.

We are now going to look at a system where the claimant’s credibility is paramount – determinations of whether a refugee has a sufficiently “well-founded fear of persecution” to be allowed to claim asylum in the United States. This is a system that depends on the credibility of the individual refugee’s story as told to an administrative judge with very limited resources to independently verify the story. These can be life and death determinations.

We are going to watch a documentary, Well-Founded Fear, on the administrative hearing process in the immigration court system. To my knowledge, there are only two documentaries that have been shot inside the world of administrative law. In each case, it was a miracle that the filmmakers were able to get permission to observe the agency. (We will watch the second one, The Regulators, as part of our Chapter 5 materials on rulemaking.

This documentary was shot in the late 1990s. While there have been some shifts in immigration rules since then, the basic law for refugee status has not changed. The major change to the adjudication process is that the system is more crowded and thus less effective now than in 2000. This film looks at the initial review process where an administrative judge (not an ALJ immigration judge) reviews the application and determines whether to grant refugee status. If the AJ denies refugee status, the claimant can request an appeal before the ALJ. (Much like final review by an ALJ in SSDI determinations.)

You have two short readings before viewing the film. The first is an article by the filmmakers on the difficulties they faced in making the film, which included opposition by immigration attorneys because the film was not sufficiently critical of the immigration judges:

Shari Robertson and Michael Camerini, Seven Ambiguities: Lawyers and the Making of Well-Founded Fear, A Law-Genre Documentary, 16 Fordham Intell. Prop. Media & Ent. L.J. 725 (2006).

You should also watch this interview with the authors:

Well-Founded Fear – Shari Robertson and Michael Camerini – Behind the Lens

The second is a guide to watching the movie:

Well-Founded Fear – Facilitators Guide

It includes a history of the Immigration Act in force at the time the movie was filmed and information about the procedures shown in the movie. Look carefully at the questions it raises about the role of the AJs in determining credibility. Watch the film carefully to see places where this process breaks down.

After you have had a chance to view the film, you will be required to post comments on a course forum about the problems you see with the process. (The forum will be opened later in the week, after you have time to read the materials and watch the movie.) Think about the pressures on the officers. Emotionally, this might be the worst job in administrative law. We are watching the film on Moodle because I have permission from the filmmakers to show it to my classes, but it is not generally released to the public.

Video – Well-Founded Fear

Forum Assignment for Well-Founded Fear

 

Assignment – Part 3

Introduction

Legislation creates agencies and gives them their powers. As an administrative lawyer, you must always start with the legislation that covers the area that affects your client, be the client an agency, a regulated party, or an interest group. If the agency has been given the power to make rules and has made rules on the subject, then those rules have the same effect as legislation if they are properly promulgated and stay within the powers granted to the agency. We are going to look at the federal rulemaking process. State rulemaking, and Louisiana in specific, parallel the federal model. The rules make up the Code of Federal Regulation (CFR). Understanding and using the code provisions are the heart of most administrative law practice. This includes commenting on proposed rules and attacking the legality of new rules. We will be taking a deep dive into making and challenging rules for the rest of this course. Many of these rules will deal with environmental law, including climate change. While environmental law was a bipartisan project in the 19060s and 1970s, it has become one of the most polarized areas of law during the three decades since Congress passed the last bipartisan environmental law. The Supreme Court majority frequently uses environmental law cases to set standards for the exercise of agency powers.

What does a rule look like?

Before we talk about the APA procedures on rulemaking, you should see what a notice and comment rule posting rule looks like. I am using these two climate change rules because they are currently before the Court in West Virginia v. EPA, a case that may fundamentally change the standards for judicial review of agency rules.

Scan these rules to get an idea of the complexity of modern rules. You do not need to read them, just see what has to go into a rule.

Clean Power Plan Final Rule, 80 FR 64662 (October 23, 2015)

Promulgated by the Obama Administration to regulate greenhouse gases (GHGs) under the Clean Air Act. The authority for this rule was established (perhaps) by Mass. v. EPA, which we will read later in the course.

Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations

This is the rule promulgated by the Trump administration to repeal the Clean Power Plan and replace it with a new rule that requires little change in GHG emissions.

Both of these rules are dead, as we will discuss later in the course when we look at the new case of West Va. v. EPA. The Biden administration has proposed a new rule to replace these that it says is consistent with the limitations imposed by West Va. v. EPA.

Readings

Chapter 5 to III. RULEMAKING PROCEDURES, p. 148 and D. The Procedures of Notice-and-Comment Rulemaking, p 180 to E.Procedures for Rules Not Subject to Formal Rulemaking or Notice-and-Comment Rulemaking, p. 188.

Todd Garvey. “A brief overview of rulemaking and judicial review.” Washington, DC: Congressional Research Service (2017).

This is an excellent reference for both rulemaking as covered in Chapter 5, and Chapters 6 & 7 on judicial review. For this assignment, read to: Exceptions to the APA’s Section 553 Rulemaking Requirements, p. 6.

The Regmap – a Review of Informal Rulemaking – simplified

The Regmap – a Review of Informal Rulemaking – Detailed

This is a graphical review of informal rulemaking. I have used parts of the simplified version in the presentations.

Video – Introduction to Rulemaking

PowerPoint – Introduction to Rulemaking

Video – The Procedures of Notice-and-Comment Rulemaking

PowerPoint – The Procedures of Notice-and-Comment Rulemaking

[Adlaw in the news posts are not exam materials unless specifically indicated.]

On May 25, 2023, the US Supreme Court decided Sackett v. EPA (Sackett II). This is an important administrative and environmental law case. The case turned on the meaning of a single word — adjacent — but is really a battle in the fight to weaken the federal government’s regulatory authority in favor of state regulation.

The Sacketts wanted to build a house on a lot that was part of a wetland. They wanted to add fill dirt to the lot to build up an elevated, dry location for their house. They did not want to obtain a federal permit to fill a wetland. They are represented by a property rights litigation foundation and this is their second trip to the Supreme Court. In Sackett I (discussed in our materials on standing), they established the right to contest the EPA’s designation of their land as a wetland without incurring hefty fines while doing so. In this case, they challenged the broad authority to regulate wetlands granted to the EPA in the Clean Water Act.

Wetlands are areas where the ground stays wet enough for long enough that the plants that grow on the ground are the type that favor wet ground and the plants that require dry ground die out. Some wetlands, like the Atchafalaya Swamp, stay wet all the time. Some are only wet part of the year, such as low-lying areas on the midwestern prairies. In arid parts of the West, some may go years without being wet.

Historically, settlers hate wetlands. Mosquitoes breed there, allowing the spread of yellow fever and malaria. They cannot be farmed and you cannot build on them. States and the federal government encouraged and funded filling in wetlands to create what was seen as productive farmland. Huge areas of wetlands were drained and filled.

Hunters’ groups, such as Ducks Unlimited, recognized the critical importance of protecting wetlands to provide habitat for wildfowl. For example, the prairie wetlands and Louisiana swamps were critical to supporting the yearly north-south migration of migratory wildfowl. They worked with early conservation groups such as the Audubon Society to get federal protection for wetlands. Federal protection was necessary because state politicians were more interested in development than in the protection of wetlands.

President Theodore Roosevelt was the first president to recognize the importance of protecting wildlife, including their wetland habits. Congress subsequently passed laws protecting migratory wildfowl and their habitats. This cumulated with a provision in the Clean Water Act of 1972 giving the EPA authority to protect wetlands adjacent to waters of the United States. EPA, through the Army Corps of Engineers, set a policy of no net loss of wetlands. To implement this policy, the EPA limited development on existing wetlands. In most cases, this effectively prevented the draining and filling of wetlands unless new wetlands were created to offset the lost wetlands. (Ironically, there was an exception for small lots which could have allowed the Sacketts to build their home, if they had applied for a permit.)

The program has been very controversial. Wetlands scientists question whether the wetlands created to mitigate the loss of natural wetlands are effective if they even get built. Landowners often lose most of the value of their property if it is determined to be a wetland. Property rights groups have fought federal wetlands protections for years, knowing that most states will be much friendlier to development. Congress has not changed the law because wetlands protection is broadly popular with the public.

For 50 years, the EPA has assumed that the word “adjacent” in the Clean Water Act meant that it could protect wetlands that were close to, but not on the banks of rivers and lakes, as long as there was some hydrologic connection. It also assumed that “waters of the United States” was construed broadly including all rivers and lakes, not just those that you could float a boat on and conduct interstate commerce.

The Sackett II court held that “adjacent” had a very narrow meaning, effectively limiting the authority to protect wetlands to those directly connected to waters of the United States. The court also found that “waters of the United States” is more narrow than any rivers and lakes, perhaps limited only to actually navigable waters. For example, many western rivers can dry up completely during parts of the year. Whether these are included in “waters of the United States” is not clear and will have to be resolved by future litigation.

While the Sackett II decision is unanimous, the moderate judges only joined in the general finding that the EPA had overreached. They did not join in the dramatic narrowing of the EPA’s authority. Sackett II will eliminate most inland wetlands regulation by the Federal government. It shows the power of the court to reinterpret a statute to remove agency powers that Congress believed it was giving the agency at the time the law was drafted. It will profoundly limit the protection of wetlands in the United States and end the policy of no net loss of wetlands across the United States. State governments will now have to step in or see their state wetlands lost.