1. Introduction to Administrative Law For Environmental Law Students
Edward P. Richards

2. Administrative Law
Administrative law governs the organization and functioning of government agencies, and how their actions are reviewed by the courts. 
Administrative law is the heart of the modern state, and keeps life from being nasty, brutish, and short.

3. Cross-Cultural View
The US administrative law system has many parallels with non-Louisiana civil law systems
An emphasis on codes, rather than case precedent
Inquisitorial rather than adversarial adjudications
The combination of functions in a single agency, rather than in different branches of government

4. Agencies are Established by the Legislature
The agency enabling statute establishes the agency's:
Powers and Duties
Organization
Funding
Standards for Judicial Review of the Agency's Actions
Some state agencies are established by the state constitution or constitutional amendments.

5. Agencies only have the Power Given by the Legislature
General Grant of Power
Public health laws
Specific Grants of Power
Narrowly drawn statutes such as the Americans with Dishabilles Act.
Contingent Grants of Power.
Laws that are triggered by a declaration of a state of emergency.
The Legislature cannot grant the agency more power than the legislature itself can exercise

6. Executive Control in the Federal Government
All enforcement agencies are in the Executive branch.
Enforcement can include orders to comply with the law, fines, and criminal prosecution.
Congress can control agencies that only do studies and investigations, such as the Congressional Budget Office or the Library of Congress.

7. Executive Control in the States
States have several elected executives that control agencies, not a single head like the president.
The governor controls most agencies.
The attorney general controls the legal office.
Other state offices, like state auditor, also have elected heads.
Some states even allow legislative agencies with enforcement powers

8. Legislative Oversight of Agency Appointments
The US Constitution provides that the senate must approve the appointment of officers of the United States.
The heads of most executive branch agencies, and some of their subordinates, are officers of the United States and thus must be approved by the Senate.
The Senate can use this to threaten agencies when the president is from another party.

9. Removal of Agency Heads
Most agency directors in the state and federal system serve at the pleasure of the executive
This is a major source of executive control over agencies
Some agencies, called independent agencies, are run by boards or commissions.
Members have fixed, staggered terms and can only be removed for bad conduct
This limits executive control and gives the agency some independence from political pressure

10. Non-Agencies and Administrative Law
The President is not an agency.
The military is a quasi-agency
An agency for many organizational and procurement purposes
Not an agency for military actions
DOJ, police departments, and courts
Agencies for basic governance
Not agencies for their substantive criminal law work.

11. Agencies are the Vehicle for Carrying out Political Policy
Enforcement policy
When does a business get a second chance and when do they get closed for violating regulations?
When do you use quarantine and isolation?
Fiscal policy
Which diseases do you investigate when you have limited staff?
What programs are cut when the budget is cut?
Changes of government can profoundly change agencies

12. Changing Agency Policy
Executive branch control
Replace the agency director
Use Executive Orders to direct agency policy
Legislature
Change the enabling law
Increase or eliminate the funding for agency functions
Citizens
Petition the agency to change regulations
Participate in pubic hearings
Lobby the executive and legislature
Elect different politicians in the executive and legislature

13. Carrying Out Agency Policy

14. Administrative Procedure Act (APA)
The set of laws in each state and the federal government that specifies how the agencies in that jurisdiction carry out basic functions such as rulemaking, adjudications, and how citizens can petition the agencies.
APAs were first adopted post-WWII
The APA only applies if the legislature has not made special rules for a given agency.
Federal APA

15. Administrative Rules
The Legislature can delegate the power to make rules to the agency
Some agencies do not have rulemaking authority
Rules cannot exceed the authority in the agency's enabling legislation or the Constitution
Properly promulgated rules have the same effect as statutes

16. Definition of a Rule APA 551(4)
(4) 'rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing;
Not a clear definition
Things that are not adjudications or licensing

17. Functional Definitions
General applicability, as opposed to specific parties
Prospective
Binding on the agency as well as on the public

18. Orders versus Rules
Rules are directed to the universe of regulated parties, not to individuals.
Agency directives to specific parties based on individual facts are called orders. They may trigger a hearing for the individual, but do not need notice and comment.
Assume the EPA makes a rule that applies to copper smelters which are located more than 5,000 above sea level.
What is there is only one?
Is this still a rule?
Do we see statutes directed at single parties?

19. Jargon Alert Rule, legislative rule, or regulation
They all mean the same thing
Has the same effect as a statute passed by the legislature
Non-Legislative rule
Has no legal effect, but shows what the agency thinks the law is
Many names - interpretive rule, guidelines, guidance document, anything but rule or regulation

20. The Agency as Legislature
The modern rulemaking process got started in the 1950s and really accelerated in the 1970s
Parallels the growth of federal agencies
The federal courts now encourage agency rulemaking
It reduces litigation and simplifies the litigation that ensues

21. The Power to Make Rules
The power to make rules must be delegated by the legislature
If the enabling legislation (the legislation creating an agency) is silent, the agency cannot make rules
The delegation may be broad, allowing the agency great discretion, or very narrow
We will look at the standards for reviewing this delegation later in the course

22. Must the Agency Make Rules?
If the agency has the power to make rules, it has the discretion on what rules to make and when to make them.
The legislature can put provisions in the agency legislation requiring that certain rules be made, and the timeframe for making them.
The Clean Air Act required rulemaking to flesh out detailed technical standards
Unless there is a legislative directive, it is difficult to get the courts to force an agency to make rules
Not impossible, as we will see latter.

23. Why Make Rules?
Many statutes have too little detail to be enforced without additional rules.
Rules can be used to tailor a statute to new circumstances.
Rules provide a chance for the for the public to participate in the regulatory process
Once promulgated, a rule in binding on every party, reducing the need for adjudications.

24. Uniformity
Rules set up a general framework that treats all parties uniformly
Rules are the fairest way to make big regulatory changes
If the agency does not have rules, it can change enforcement policy from case to case, and is also at the mercy of judges to accept or reject agency standards

25. Adoption of National Standards
National standards can be adopted through agency rules, harmonizing practice across jurisdictions
National building codes
CDC guidelines on food sanitation
Recommendations of the Advisory Committee on Immunization Practices
LA and building codes

26. Agency Efficiency
While a rulemaking can be expensive and time consuming, it can settle issues which might otherwise have to be litigated in every enforcement case.
Disposal of Nuclear Waste
Rulemaking can eliminate many hearings by resolving factual questions
In disability cases, rules can be used to establish what constitutes a disability, rather than making it as case by case determination.

27. Agency Oversight
You can control the outcome of rulemaking much easier than that of adjudications
Not dependent on ALJs (administrative law judges)
More input from across the agency
Input from the public as well
Directly controlled by agency policy makers

28. The Politics of Rulemaking
Congress often dodges the hardest issues and leaves them to agency rulemaking
Most of these involve cost-benefit analysis
How do you trade off automobile safety with price and fuel efficiency?
Are you more worried about delaying the entry of new drugs or the about allowing the sale of a drug with dangerous side-effects?
Do you want cheap power at the cost of lots of asthma and the Grand Canyon full of smoke?

29. Downside of Rulemaking
Trials (adjudications) involving single parties can be more flexible in the individual cases
Adjudications are useful when you are not sure what the rule should be and need more info and a chance to experiment
Rules can be so abstract or overbroad that they are expensive or difficult to follow
Like statutes
Agencies can promulgate rules that Congress would never pass - Green House Gas Regulation.

30. Rulemaking Ossification
The courts and legislatures have increased the burden on rulemaking, especially in states
Rulemaking has gotten so complex and time consuming it has lost some of its value
Complicated by regulatory conflict and incompetent agency practice
Rulemaking can go on for years
What is the legal value of a proposed rule that has not been finalized?
The Medicare anti-kickback regulations were delayed for years between the proposed rule and the final rule

31. Notice-and-Comment Rulemaking
APA Procedures
The Register
The Federal Register
LA Register
Electronic Notice

32. Why Have Public Participation?
Public participation has great political benefit in broadening the acceptability of the rules.
Public comments can identify technical and legal problems with the rules
Publication of proposed rules allows politicians to become involved to protect the interests of their constituents
Public participation limits executive power and makes it more palatable to the courts to have agencies making laws
While the agency may take comments at hearings, it is usually done in writing.

33. 553(b) - Exceptions to Notice Requirements
1) Interpretative rules, general statements of policy, and rules of agency organization, procedure, and practice; and
2) Rules when the agency finds for good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest.
No notice means no comment under 553(c)

34. Exception 1 - Interpretative Rules
It is only explaining the law or providing guidance for action
Prosecution guidelines
IRS audit guidelines
Since they do not change the law, they have no legal effect
Like commentary in the civil law?
Does that mean you can ignore them?

35. EPA Example – Is This Definition a Rule?
EPA says that the term “waters of the United States” (which defines the jurisdiction of EPA under the Clean Water Act) includes wetlands that potentially provide habitat to migratory birds.
This might include a pothole in a field, not otherwise connected to a waterway.
If the EPA has jurisdiction over the wetland, it will become expensive or impossible to drain or develop the area.

36. Is this an Interpretative Rule or a Legislative Rule?
Can we tell by just looking at the rule?
How might this definition affect the value of the wetlands?
Is this a “substantial impact”?
Assuming that it is a substantial impact, how can the agency defend not using notice and comment?
The substantial impact test has now been mostly abandoned in favor of the “legally binding” test.

37. The “Legally Binding” or “Force of Law” Test
Can the agency enforce the law without the rule?
Continuing with the previous wetlands example
Is the agency required to define wetlands before enforcing the statute?
Was the agency doing enforcement before this rule?
If so, does this change the enforcement?
What does tell us about whether it is legally binding?
Assume a statute allows the agency to define toxic substances that cannot be dumped into lakes.
Would a list of these substances need notice and comment?
Could the law be enforced without the list?

38. Judicial Review of Rulemaking
Once a rule has been properly promulgated through notice and comment, it can only be attacked by attacking the published basis for the rule, and that must be done relatively soon after promulgation.
It can always be attacked if it exceeds the power granted to the agency.
Central issue in the Clean Power Plan.

39. Adjudications

40. When Agencies Make Decisions - Adjudications
How is an adjudication different from a rule?
Rules apply to everyone in the affected class.
Adjudications decide questions in individual cases and only bind those parties.
Parties to an adjudication are entitled to be heard.
Adjudications may include oral hearings.
Some adjudications are done on written documents only.

41. Administrative Law Judge (ALJ)
A fact-finder in the administrative law system.
ALJs usually act as inquisitorial judges and try to assure that the case is fairly presented and decided.
ALJ's do not make final decisions but make recommended rulings to the agency
Some states give more power to ALJs in the name of fairness.
Louisiana gives all the power to the ALJs.

42. ALJs versus Article III Judges
Protections
Lifetime tenure
Cannot reduce salary
Cannot fire, only impeach
Cannot discipline
Why do we have these protections?
How are state judges different?
ALJs
Civil service protections
Can be fired
Can have salary lowered, but hard to do this
Can set work standards and discipline
How are the pressures different than those on an Article III judge?
What about contract ALJs that some states use?

43. How are the expectation for ALJs Different from Article III Judges?
What does the judge know?
Administrative law judges (ALJs) may use their own knowledge of the subject.
Judges can be disqualified if they know about the subject.
Conflict of Interests
ALJs often know the parties and may have worked on the case.
Judges in courts cannot know the case or the parties.

44. How are Adjudications different from Judicial Opinions?
ALJs are primarily fact finders.
ALJs often follow Attorney General Opinions.
Judges decide legal questions on their own.
ALJ decisions are recommendations to the agency and may be changed by the agency.
An adjudication is not binding in other cases.
Court decisions can be binding on lower courts.

45. Agency Enforcement Tools

46. Permits and Licenses
You have to show you have met the standards set by law or regulation before you get the license or permit.
Standards must be clear.
Must treat all applicants equally.
Conditioned on accepting enforcement standards
You agree to be bound by the administrative rules.
You must allow inspections during business hours.
Licenses and permits can be revoked without a court order

47. Administrative Searches
License and permit holders may be inspected without a warrant.
Other inspections may require an administrative warrant.
Requirements for an administrative warrant.
No probable cause.
Must show the reason for the search and the locations
Administrative searches cannot be used when a criminal warrant is necessary.
Special rules for national security law

48. Inspections are Adjudications
The inspector determines the facts through the inspection.
The defendant may present its case explaining the problem during the inspection.
The inspector must provide a written record.
Local government often allows appeals to the city council.
The courts will defer to the inspector's findings if the case is appealed to the courts.

49. Administrative Orders
The first step in enforcement is to issue an order explaining the violation and how to correct it
Most persons comply with the order
If the person does not comply, the order proves that the person was on notice of the problem
In some cases there may also be a fine for not complying with the order

50. Enforcement of Agency Orders
If the target of the order does not comply, then the department must seek a judicial order to force compliance
Most agencies don't make arrests or use force
Some agencies do have police and prosecutors

51. Court Orders
In many cases the agency must ask the court to issue orders to enforce agency regulations or adjudications
Injunctions
Orders to prevent an actions, such as operating a restaurant
Temporary injunctions
Permanent injunctions
Personal restriction orders
These order individuals to refrain from dangerous behavior

52. The Advisory and Consultative Role
There are some agencies that do not have enforcement powers
They do research and education
They shape policy by funding other agencies or private projects

53. Public Health Examples
The CDC is a non-enforcement agency
The CDC's primary role is providing guidance to state and local health departments
Most guidance is voluntary, but can be tied to the receipt of grant funds
State and local health departments
Departments with enforcement powers also have an important research and educational role
This includes epidemiology, health education, and technical assistance to businesses such as restaurants

54. Judicial Review

55. Is the Agency Acting Legally?
Does the activity violate the US constitution or treaties?
Does a state agency activity violate the state constitution?
Is the agency activity allowed by the agency's enabling act?
Is the activity prohibited by other laws?
Is the agency following its own rules?

56. The Legislature Sets the Standard for Judicial Review of Facts
De Novo Review
The court ignores the agency decision
Review on the Record
The court uses the record of the agency proceeding but makes an independent review
Deference to the Agency - Most Common
The court upholds the agency decision unless it is arbitrary and capricious
No Review
In some cases, such as the smallpox compensation fund, the legislature does not allow judicial review of the agency decision

57. Courts Defer to Agency Policy Decisions
"It is not the function of a court to determine whether the public policy that finds expression in legislation of this order is well or ill conceived. The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense. Within the field where men of reason may reasonably differ, the legislature must have its way." (Williams v. Mayor of Baltimore, 289 U.S. 36, 42 (1933)

58. Why Do the Courts Defer to the Agency?
Efficiency
Legislatures do not have the expertise to draft detailed directions for the health department
Broad authority lets the agency use its own expertise
Flexibility
Health departments must deal with new conditions and emergencies that were not anticipated by the legislature
Speed
If the courts required specific laws for all actions, it would take months to years to get laws passed for new problems
Separation of Powers
The courts should not usurp the executive's power to make policy.

59. What if the Law is not Clear?
Courts use a standard from an environmental law case, Chevron v. NRDC, to decide if the agency action is legal
The first step is to determine if the law clearly prohibits the agency action
If the law would allow the action, then the second step is to decide if the agency action is reasonable in light of the objectives of the law
If the action is reasonable under the statute, then it is allowed
Is the law ever clear if the court does not like the agency action?

60. Can the Court Change the Agency Decision?
If the court finds the agency action is illegal, it can prevent the agency from acting.
A federal court cannot change an agency ruling, only block it and send it back to the agency for reconsideration.
Some state courts can change the agency ruling and substitute their new ruling.

61. Exhaustion of Remedies
Many agencies provide an internal appeals or review process for agency decisions
The courts require that persons who want to challenge agency actions in court first go through all the agency appeals
The court does not require exhaustion of the agency process if the agency is acting illegally
If the litigant goes directly to court and the court decides the action was legal, it will be too late to finish the agency process

62. Public Access to Agency Information

63. Freedom of Information Acts
Provide public access to information held by agencies
Have exceptions to protect trade secrets and information that will affect agency function or public safety
Modified by state and federal privacy laws to protect personal information

64. Open Meetings Laws
Provide for public attendance at agency governing body meetings.
Require public notice of meetings
Allow for closed meetings on personnel matters and other topics such as bids that require secrecy