Administrative and Environmental Law

The body of rules, orders, and decisions issued by administrative agencies, such as the federal Occupational Safety and Health Administration or a state's public utilities commission.

Agencies authorized by federal or state legislation to make and enforce rules to administer and enforce legislative acts (e.g., the Social Security Administration).

Agencies formed to assist the President or, at the state level, the Governor, in carrying out executive functions (e.g., the Federal Bureau of Investigation).

Agencies neither designed to aid nor directly accountable to the legislative or executive branches (e.g., the Securities and Exchange Commission).

Legislative action specifying a legislatively-created agency's name, purposes, functions, and powers.
As a general rule, an agency lacks the power to act beyond the scope of its enabling legislation.

Although the U.S. Constitution empowers only Congress to enact laws, administrative agencies can, within the scope of their enabling legislation, make legislative and interpretive rules.

have the same force and effect of a legislatively-enacted statute.

declare policy but do not create new legal rights or obligations.

A president or governor generally has the power to appoint agency officials, to veto enabling legislation as well as appropriations, to monitor agency efficacy and efficiency, and to require streamlined compliance and enforcement procedures.

Congress or a state legislature must enact and may review, amend, or repeal enabling legislation; generally controls agency appropriations; and may "freeze" the implementation of new rules before they take effect.

Most agency decisions are subject to judicial review if the party seeking review can establish that
(1) it has standing to sue the agency,
(2) there is an actual controversy between it and the agency (a.k.a. ripeness), and
(3) it has exhausted all administrative remedies.

Courts defer to agency fact-finding and actions, and generally review agency decisions only for procedural irregularities, failure to properly interpret applicable statutes, lack of evidentiary support, constitutional issues, and abuse of agency power.

empowers a federal court to "hold unlawful and set aside" agency actions that the court finds to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Among the factors courts consider include whether the agency:
(1) failed to rationally explain its action,
(2) changed its prior policy without justification,
(3) considered legally inappropriate factors,
(4) ignored a relevant factor, or
(5) rendered a decision plainly contrary to the evidence.

The process of formulating new regulations. Federal agency rulemaking typically occurs as follows:
Notice of Proposed Rule Making
Comment Period
Final Rule

A proposed rule and some discussion of its rationale are published by the agency in the Federal Register. The notice invites public comment and notifies the public of the times and places of any hearings on the proposed rule.

Following publication in the Federal Register, the agency must allow ample time for public comment. The agency need not respond to all comments, but it must respond to any significant comments that bear directly on the proposed rule by either modifying the proposed rule or explaining why the modification was not made.

Once the final version of the rule is decided upon by the agency, it will be published first in the Federal Register and then compiled annually in the Code of Federal Regulations.

Subpoena
Search Warrant
Policing Investigations

Both as part of the rulemaking process and as part of the enforcement of the rules, agencies conduct inspections of regulated entities' facilities or business records. While many businesses voluntarily comply with agency requests for an inspection, those that don't may face a subpoena or a search warrant.

compelling the entity to produce records (subpoena duces tecum) or to provide testimony (subpoena ad testificatum),

compelling the entity to make its facilities available to the agency for inspection.

To determine if an agency is overstepping its bounds in conducting an investigation, courts may consider:
(1) whether the investigation has a legitimate purpose;
(2) the relevance of the information sought;
(3) the specificity of the agency's demand for testimony or documents; and
(4) the burden the demand places on the entity.

filed by the agency, to which the subject entity files an answer.

who will conduct a quasi-judicial (or "court-like") proceeding, the exact nature of which varies from agency to agency.

subject to appeal to the agency's governing board (e.g., the actual commissioners of the Federal Trade Commission).

which may be appealed to a designated court (e.g., the U.S. Court of Appeals for the D.C. Circuit).

Requires federal agencies to disclose certain records to any person on request, subject to restrictions as to time and place, and to make their records available electronically - including, but not limited to, via the Internet. Some states have similar legislation.

Subject to certain specified exceptions, agency meetings must be (1) noticed to the public in advance and (2) open for public observation, if not participation.

Provides that, whenever a new regulation will have a "significant impact" upon a "substantial number" of small businesses, the agency must consider less burdensome alternatives, notify small businesses about forthcoming regulations, and reduce the record-keeping responsibilities of small businesses.

Empowers federal courts to enforce the RFA, requires federal agencies to explain new regulations in "plain English," provides ombudsmen to receive comments and complaints from small businesses, and entitles small businesses to recover expenses and legal fees incurred due to "excessive" agency demands.

A person may be liable if they use their property in a manner that unreasonably interferes with others' rights to use or enjoy their own property.

If an individual can identify a harm to his property rights distinct from that suffered by others, then he may obtain relief with this.

if the harm is to the public at large, then generally a public authority will seek relief with this.

The primary federal regulator of air, soil, and water quality, its duties include reviewing environmental impact statements, which analyze
(1) the environmental impact of a proposed federal action,
(2) any alternatives which might have less significant environmental consequences, and
(3) the long-term, irreversible effects of the action, if any.

The Clean Air Act, as amended, empowers the federal government to control pollution emissions from both
mobile sources, such as cars and motorcycles, and
stationary sources, such as factories and power plants.

require major sources of hazardous air pollutants to use maximum achievable control technologies to reduce emissions and created emissions "credits," which businesses that more effectively controlled their emissions could "trade" (i.e., sell) to less-effective controllers.