ENVI 230 CH. 14 “Courts and Environmental Policy” 3/23

-Political doctrine
-Courts decide matters of law, not politics
-Therefore, courts defer to Congress on policy

-Congress makes law under the constitution
-Why can Congress regulate anything environmental?
-Not an obvious answer: the constitution doesn't discuss environmental issues directly

-Deference: courts grant. Is a principle of judicial review. In the context of administrative law, deference applies when a federal court yields to an agency's interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency.

-Commerce Clause
-Congress has the power to regulate commerce with foreign nations, among several states, and with the Indian tribes

-Due Process
-14th and 5th amendments (allows federal courts to make decisions on property)

-Elastics Clause

-Rules-making authorized within legislation
-APA defines a rule: "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"

-Executive orders purely Presidential

-Recall: endangered species act
-Prohibition on a take:
-Take: "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct."
-Harm: "an act which actually kills or injures wildlife."

-A new definition of Harm: "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."
-Notice: "Take" defined in law; "Harm" defined in rule

-Coalition of landowners, developers, loggers sue, arguing that "harm is too widely defined: "significantly impairing essential behavioral patterns"
-causes real economic harm

-Courts must decide--Is the definition of "harm" reasonable given the intent of the Endangered Species Act?

-Supreme court rules on the procedure used to define 'harm': did the secretary of the interior go too far in setting this definition
-NO (6-3): Congress granted bureaucratic discretion under ESA for secretary to decide scientific details
-Therefore, defer to a reasonable technical and/ or scientific opinion

-Background: 1977 Clean Air Act Amendments
-Requires non-attainment states to issue permits on new sources of pollutant emissions
-Carter administration interprets as per-emitting device (smokestack)
-Reagan administration interprets as per-facility, so long as aggregate emissions don't increase: the bubble rule

-(1) "First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.

-If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute... Rather,

-(2) [I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute."

-Majority opinion:
1. If congress explicitly defines the range of agency, then that is the standard
-Example: 1990 and HAPS (no discretion)
2. If congress is "silent or ambiguous", the standard is whether the agency's decision is within the context of the statute
-Congress never explicitly states where point-source air quality standards should be enforced

-Bubble Rule stands
-WIDE discretion for agency action
-Congressional intent is ambiguous, and
-Agency action is reasonable, then defer to agency discretion (grant Chevron deference)

-Notice: Also wide deference to Presidential action
So long as Presidential action is not arbitrary and capricious
—i.e. so long as the action is not prohibited by law or is capricious by standards

-If Congressional intent is clear: bureaucracy (President) have no discretion

-If Congressional intent is for bureaucracy (President) to make a decision: Babbitt says defer to science

-If Congressional intent is ambiguous: Chevron says defer to bureaucratic expertise so long as it's reasonable (not arbitrary and capricious)

-Checklist of Judicial Review
1. Was Congress ambiguous?

2. Was the agency action reasonable?
-If 'Yes' to 1, then reasonable implies procedures followed, decision-based on sound science
-If 'No' to 1, then reasonable implies procedures followed, decision-based on what Congress wants

3. If 'Yes' to 2, then defer to agency expertise