BESC Exam 1 (Ch.3)

o Regulations are created by administrative agencies.
o In some instances Executive Orders have been used to establish Administrative Agencies. Agencies are expected to execute specific duties of public interest, convenience, and necessity; to do this, they are given various legislative, executive, and judicial powers. These powers make administrative agencies a fourth branch of government.

o Explain the creation of and functions for administrative agencies
o Distinguish among the different forms of rule making
o Describe the process of administrative agency adjudication
o Recognize the limitations that influence rule making
o Attribute how the branches of government limit agency powers
o Identify the unique role for agencies regulating the environment
o Review the history of the EPA

o SES: Senior Executive Service administer- a corps of men and women who administer programs at the top levels of the federal government. Positions are mainly managerial and supervisory and fill the top positions in federal administrative agencies.
o EX: Exempted Appointments- appointed by the President with the consent of the Senate, such as secretaries of departments and agency directors. These individuals are not elected, which ideally insulates them from political pressures. People in these positions can significantly affect the enforcement of administrative law, including environmental law.

o The benefits to Administrative Agency rule making are obvious given that it would not be expedient for the legislature to issue rules itself. Some are critical of rule making due to the fact that officials at the agencies, while not subject to the same political pressure of elected officials, may have pre-existing relationships with the industry they regulate.
o Captured agency- Not surprisingly the agencies hire people with expertise in a given industry. This means you can end up with people from a given industry, with biased approaches to regulating that industry. When this is pervasive across a given agency, it is said to be a captured agency.
o Affects of Scientific Uncertainty: It is central to all decision making about environmental issues. The benefits to Administrative Agency rule making are obvious given that it would not be expedient for the legislature to issue rules itself. Some are critical of rule making due to the fact that officials at the agencies, while not subject to the same political pressure of elected officials, may have pre-existing relationships with the industry they regulate. Not surprisingly the agencies hire people with expertise in a given industry.
o Impact of reliance on long term thinking: Environmental rule-making should balance the immediate costs associated with compliance for a given regulation vs. the long-term gains, perhaps for future generations, provided by the regulation. How much should we sacrifice in the present to protect those in the future? Setting compliance requirements in the face of potential legal challenge by the regulated industries or by the environmental interests pushing the agency to act runs the risk of causing agencies to choose strategies that might not satisfy either group or might not be very effective.
o Businesses stationed in the US may be at a competitive disadvantage if they have rules that cost them greater time or money than business outside the US. Furthermore, US companies may move to seek reduce regulation and other costs associated with materials and labor. Finally the will of the public to support regulations is greatly impacted by the economic state of the country. Thus regulators are more likely to see greater public acceptance of rules during a healthy economy with low unemployment.

o Congress grants a specific scope of authority to the agency. In more rare cases administrative agencies are created via executive reorganization plans. These plans are enacted via an executive order. In either case, the purpose is to authorize the power for the agency and define the limits of that power.
o Administrative agencies are granted quasi-legislative powers, allowing them to create rules, also called regulations. That is, administrative agencies promulgate regulations.

o Promulgation is when an agency puts a rule or regulation into action. The Administrative Procedures Act of 1946, which we discuss later, describes rule making process can happen one of four ways:
• Regulated Negotiation: newer form of rule-making that seeks to reduce challenges to regulations and increase structured bargaining among interested parties. A mediator leads bargaining meetings with representatives from the interested groups and agency. The agreements reached are forwarded to the agency. The agency is then expected to publish the compromise as a proposed rule in the Federal Register and follow through with the requisite rule-making procedures. The agency, however, is not bound to do so. If it does not agree with the proposal the group negotiated, the agency is free to try to promulgate a completely different rule or a modification of the one obtained through the negotiation. The rationale for use of regulated negotiation is the same as that for more frequent use of mediation over litigation from Chapter 2. A compromise created by interested parties is more likely to be acceptable to those parties than a rule created by an authority. This approach is preferable in cases where compromise is possible. In cases where there are way too many interests to expect resolution via mediation or when there needs to be a decision between different principled stances this is not the most appropriate approach.
• Informal: also called notice and comment rulemaking. It is used when no other form is prescribed. The proposed rule is published in the Federal Register, which can be commented on by any interested parties wishing to participate in the agency's decision. (However, in all rule making processes, public participation requirements may be exempted if they are related to military or foreign affairs, agency management or personnel, public property, loans, grants, benefits, or contracts, interpretive rules, general policy statements, and when public interest is impracticable, unnecessary, or contrary.) After comment and possible testimony review, the final rule is published in the Federal Register and becomes effective at minimum 30 days later. This model is cost- and time-efficient, but comments from biased parties may go unopposed and still be considered and there will not necessarily be a transcribed record of the process.
• Formal: used when a hearing and transcript are required as indicated in the enabling legislation or a particular statute. First, the proposed rule is published in the Federal Register. Then, there is a recorded public hearing with witness testimonies and cross-examination discussing the pros and cons. An official transcript of the hearing is kept. This hearing is considered by the agency, published as formal findings, and the rule is or is not promulgated. The final rule is published in the Federal Register and ultimately. A disadvantage of this model is that hearings and transcripts can be costly. For this reason formal rule making is only used when prescribed, it is never interpreted as the expected model for the rule making process unless explicitly stated in the law associated with the rule making process.
• Hybrid models: attempts to combine the best features of informal and formal rule making. The starting point, publication in the Federal Register, is the same. This publication is followed by the opportunity for submission of written comments and then an informal public hearing with a more restricted opportunity for cross-examination than in formal rule making. The publication of the final rule is the same as for other forms of rule making.

o Adjunction: legal process of resolving a dispute
o Defined by the Administrative Procedure Act
o Overseen by Administrative law judges (ALJs)
o Adjudication begins with an investigation and an agency filing a complaint. The party against which the agency is taking the action is entitled to notice the time and place of the hearing, the authority the agency is relying on, and the matters of fact and law asserted. After that party receives the complaint they file an answer . If a settlement is not reached, then there is a hearing in front of an ALJ at which the ALJ issues a decision. This decision can be appealed, and top-level representative of the agency issues a decision. That decision can be appealed to the circuit court of appeals. Agencies can issue compliance orders, which require immediate action or movement toward compliance, with punishment for noncompliance.

o The EPA's effectiveness is influenced by its ability to work with other federal and state agencies. Combining resources and efforts can help agencies achieve mutual goals, enforce higher standards, and support federal initiatives.

oLimited by Federal Statues
• The most pervasive is the Administrative Procedure Act: which is a statute that governs the way administrative agencies of the federal government may propose and establish regulations. The act also sets up a process for the United States federal courts to directly review agency decisions. It is one of the most important pieces of United States administrative law. The Act became law in 1946. The APA applies to both the federal executive departments and the independent agencies.
• Two other acts are especially helpful in keeping agency action open to the public, preventing secret, arbitrary, or capricious activity: the Freedom of Information Act and the Government in Sunshine Act.
• The Freedom of Information Act: requires agency information publication, to allow public access to proposed rules, policy statements, staff manuals, and policy interpretations.
• The Government in Sunshine Act requires business meetings to be open to the public if a collegiate body heads the agency, when a quorum is present. (A collegiate body has two or more people, with the majority being appointed by the President and approved by the Senate).
• The Federal Tort Claim Act: allows private parties or citizens to bring claims against the government for improper actions of federal administrative agency employees. Damages can be sought for torts, or civil wrongs. The act forces an agency to waive sovereign immunity for its tortious actions and those of its employees. Tortious actions under this act include assault, battery, abuse of prosecution, and false arrest.

o In the executive branch, the President appoints agency heads; the president may also issue executive orders, or mandates; and the Office of Management and Budget recommends agency budgets.
o In the legislative branch, Congress exercises oversight and investigative power, to determine whether agencies are properly executing their intended functions; termination and amendment powers; approval power over budgets; advisory powers on administration head nominations; and powers in the Congressional Review Act of 1996. Budget powers are the greatest limitation on agency actions. The Congressional Review Act requires 60 days before a regulation takes effect after promulgation. In that time Congress is allowed to reject the rule if a majority passes a resolution of disapproval. The resolution of disapproval nullifies the relevant regulation if its signed by the president or if his veto is overridden by Congress.
o The judicial branch acts to ensure that agencies adhere to their statutory requirements. Courts can reverse or modify agency rulemaking or adjudication actions when a legal complaint is filed by a party that deems an agency's rule invalid. A rule is invalid if the agency's enabling statute was too ambiguous and scope was not limited; if the agency acts beyond its given scope; if the agency violates a constitutional principle; or if the agency does not follow proper rule promulgation procedures.
• ¨ Distinguish the characteristics of Executive agencies and independent agencies.
o Executive, or cabinet-level, agencies are usually within a department of the executive branch. Their functions are broader in nature and considered social regulation. The President appoints heads for the executive agencies. Thes appointed heads that can be discharged at any point, for any reason, by the president.
o An independent agency is usually not within any department. The independent agencies tend to be called commissions and have more narrow focus on economic regulation. Independent agencies are headed by a board of commissioners, which has a chair. The president appoints the board with the advice and consent of the Senate., The commissioners have a fixed term that cannot be ended without reason. There may not be more than a simple majority of either political party on any commission.

o Executive, or cabinet-level, agencies are usually within a department of the executive branch. Their functions are broader in nature and considered social regulation. The President appoints heads for the executive agencies. Thes appointed heads that can be discharged at any point, for any reason, by the president.
o An independent agency is usually not within any department. The independent agencies tend to be called commissions and have more narrow focus on economic regulation. Independent agencies are headed by a board of commissioners, which has a chair. The president appoints the board with the advice and consent of the Senate., The commissioners have a fixed term that cannot be ended without reason. There may not be more than a simple majority of either political party on any commission.

o Hybrid agencies may share qualities of executive and independent agencies, the EPA is an example of this. It is independent of any department, but the administrator is subject to presidential preferences.

o The EPA was created by a presidential reorganization order in 1970. Its original functions were to control air, water, solid waste, pesticide, radiation, and toxic pollution in coordination with state and local governments. It is one of the largest federal agencies. The EPA's structure was designed to encompass all aspects of pollution control. There is a head administrator, helped by the deputy administrator, sets overall policy.

o Department of Interior: charged with balancing preservation of natural resources, especially land, and economic growth. It contains the Bureau of Land Management, which manages public lands and resources mostly in Alaska and the west; the U.S. Fish and Wildlife service, which protect wildlife and habitats; and the National Park Service, which conserve natural and historic lands. Also administers Indian land programs.
o Department of Agriculture: includes the U.S Forest Service, which manages forests and grasslands. Like the Department of the Interior, it strives to balance natural resource use and conversation, but its efforts are focused on a particular type of wilderness.
o Department of Labor: includes occupational safety and health administration (OSHA), which is responsible for health and safety in the workplace; the National Institute for Occupational Safety and Health Administration.

o U.S. Forest Service, which manages forests and grasslands. Like the Department of the Interior, it strives to balance natural resource use and conservation, but its efforts are focused on a particular type of wilderness.

oApart of the Department of Labor
• OSHA: Occupational Safety and Health Administration
• NIOSH: National Institute for Occupational Safety and Health

o Environmental agencies are also present at state and local levels. The U.S. EPA is obligated to delegate responsibility for operating many federal environmental programs to states that meet certain qualifications. State administrative agencies are responsible for operating these programs. The states set up their environmental agencies in a variety of ways.