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:
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
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