1 Administrative Rulemaking: How science becomes law. With examples from the WOTUS rule - PowerPoint Presentation

1 Administrative Rulemaking: How science becomes law. With examples from the WOTUS rule and the Clean Power Plant rule. Edward P. Richards

History of Administrative Law in the United States

Administrative Law in the ConstitutionThe Founders planned for a small federal government with limited powers for a country that would have a limited role in the world.They saw the primary role of the federal government as referring fights among the states and national defense.The Constitution established the framework for separation of powers and basic functions of the government, but is largely silent on the law of agencies because the day to day government was run by states and cities.

Administrative Law Was Mostly Left to the States until the Great DepressionThe states and cities had extensive regulatory laws and agencies from the colonial period to the 1930s, when the feds began to have a larger role.While some see the this period as one of limited regulation, that is only true at the federal level.The states were aggressive in some areas of regulation and some of these were very intrusive.Most administrative law (most government) is still carried out at the state level.

The Great DepressionThe modern regulatory state began with the Great Depression.Federal agencies were formed to provide jobsWPAAgencies were formed or strengthened to regulate business to prevent another crash and for public safety.FDIC, SEC, FAA

The Impact of the Founder’s Limited Conception of the Federal GovernmentThe constitutional support for agencies is thin.The Supreme Court rebelled against the expansion of agency power during the Depression and the New Deal. The rebellion ended after Roosevelt threatened to pack the court.The court has allowed broad agency power after these cases and has been pragmatic (mostly) since then.This is based on norms, however, and there is a fear that the court will unwind these norms.

World War IIThe role of the federal government was greatly expanded to fight World War IITook over private business for the war effort.Intruded in private life (rationing, etc.) for the war effort.The military did not disband after WW II because we went into the Cold WarThe federal government also did not disband, beginning the modern regulatory state

Post World War IIModern administrative law starts with the Administrative Procedure Act in 1946.Modern Supreme Court admistrative law jurisprudence starts in the 1960s as the regulations increase and Court starts to work out the proper role of agencies.The current court is reexamining basic administrative law doctrine as it unwinds legal norms and regulatory practice.

9 Separation of Powers – Federal Government The US Governments is divided Into three branches: Legislative Branch Executive Branch Judicial Branch The executive branch is headed by the president. Regulatory agencies are in the executive branch.

10 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.

11 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.

12 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.

13 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

14 Why Make Rules? Legislatures do not have the expertise or the time to legislate in technical areas 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 Rules give the public and regulated parties guidance Rules limit the issues that can be reviewed by the courts

15 Public Participation in Rulemaking Proposed rules must be published for public comment. (There are exceptions.) The agency must take written comments. Some states require public hearings if requested by enough people. Federal agencies sometimes use public hearings on important policy issues. The agency must review and respond to the comments.

Original APA Requirements for Rulemaking(1) a statement of the time, place, and nature of public rule making proceedings;(2) reference to the legal authority under which the rule is proposed; and(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. (c) …the agency shall give interested persons an opportunity to participate in the rule making through submission of written data … After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. 16

Judicial Review of RulemakingDoes the rule exceed the authority granted by Congress?Is the rule unconstitutional?Is the rule “arbitrary and capricious” (A&C)?This is a deferential standard intended to limit judicial interference in rulemaking.The APA intended rulemaking to quick and efficient.17

Reviewing Rules Made Under Ambiguous StatutesCongress often writes ambiguous law.An agency sometimes must apply the law to a different situation than Congress had in mind.In these cases, the Courts have to determine whether the rule has gone beyond the legal authority given the agency by Congress.This is one of the most controversial questions in regulatory law – should the agency or the court decide when the law is not clear.18

The Chevron Case19

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Chevron DeferenceStep One – Is the statute clear?Does it prohibit or clearly allow the rule?If it is ambiguous – it could allow the rule, but does not clearly do so – then the courts goes to Step TwoStep Two – Is the rule a reasonable application of the statute?If so, then it is allowed.Key – if there is more than one reasonable reading of the statute, the agency gets to choose, not the court.Chevron Deference is seen as original sin by the right.23

The Courts Complicate RulemakingThe courts cannot change the A&C standard and cannot add requirements to the APA.What they have done is require detailed explanations of the science, the cost benefit analysis, and the policy justification before applying the A&C standard.The courts take a “hard look” at the details of the record before the A&C review.24

The Pros and Cons of Hard Look ReviewHard look assures that all new rules will go through years of litigation before going into effect.Hard look is the vehicle for litigants to demand a detailed and correct scientific record.Hard look makes it difficult to introduce new rules.What is the impact of hard look when you want to change or eliminate an existing rules?25

Standards for Changing or Eliminating RulesA new rule will get a hard look, demanding a lengthy record that can takes years to build.The court has applied this standard to changes to rules and the elimination of rules when the change or abrogation is based new on science or on new facts.When the changes or abrogation are based on the same facts/science, but a different interpretation of the law or a different policy choice, the agency may not need to build a new record.26

State Farm – New Facts, New RecordThe State Farm case arose when the Regan administration rescinded a passive restraint seatbelt law passed by the Carter administration.The DOT said that the rule was no longer needed and did not provide a record documenting the different facts that it relied on.The court said that DOT would have to publish a full record –rescinding/changing a rule needs the same level of record as making a rule.27

The Fox Case – Changes Based on Policy Choices.This is not a notice and comment rulemaking, but an order by the FCC.This is the “fleeting expletives” case.The FCC did not provide a detailed factual or scientific record supporting its decision to ban “fleeting expletives.” The court found that the FCC had clearly stated its new policy and that was enough.28

The Clean Power Plant Case – State Farm?The proposed rule replacing the Clean Power Plan with a much weaker standard is based on changed facts in the record.The EPA has removed secondary health benefits – the effect of the reduction of air pollution – from the cost benefit analysis used for the original rule.Since this is based on changing the factual or scientific basis of the rule, it will likely need a full and accurate record.29

The Waters of the United States Rule (WOTUS)30

Rapanos v. United States, 547 US 715 (2006)A land developer challenged the Corps’ legal authority to regulate wetlands that indirectly drained into navigable waters.Wetlands regulation is based on this phrase from the CWA: “the waters of the United States”The developer was denied a permit and argued that the wetland did not directly connect to a water of the United States. 31

Rapanos in the Supreme Court - ScaliaThe court split 4-4-1.The Scalia opinion held that while waters of the United States was broader than navigable waters, it still required direct connection to a persistent and discrete river or lake. 32

Rapanos in the Supreme Court - Dissent4 judges joined the dissent.The dissent found that waters of the United States is a broad notion that include the ecological notion of wetlands.Under this analysis the Corps had authority to regulation the wetlands in Rapanos and could thus deny the developer a permit.33

Rapanos in the Supreme Court - KennedyKennedy found that the as long as the wetland has a “hydrologic nexus” to a water of the United States, they could be regulated. This is not as broad as the dissent, but broader than the Scalia.While disagreeing with Scalia on the reasoning, it agreed that the lower court decision should be vacated and the case remanded.This makes the Scalia opinion technically the majority, but the case provides no binding precedent.34

The Obama WOTUSRapanos arose because the EPA had never promulgated a rule on wetlands regulation. The Obama EPA finally promulgated a rule, which was based on the Kennedy view of the CWA.The Obama rule, using the expansive definition of wetlands from the dissent, included transient and isolated wetlands.It provided a detailed scientific and factual record. 35

The Trump WOTUSThe Trump EPA published a replacement rule. The Trump rule does not have a detailed record explaining the factual and scientific basis for changing the rule.The Trump rule asserts that it is changing policy by adopting the Scalia opinion.The argument is that the change is a policy choice, not based on factual or scientific differences from the existing rule.The question is whether the court will accept this analysis or will demand a new record.36