Administrative Record

Transcription

1 ESA Implementation: Administrative Record Red-cockaded Woodpecker Cyanea superba Gopher Tortoise Photo Courtesy of USFWS 1

2 Overview What is the Administrative Procedure Act (APA)? What is the role of the reviewing court and what standard of review is applied? What is an Administrative Record (AR) and how is it used? What is included in the AR and what is excluded from the AR? Tips on creating and maintaining the ideal AR for NEPA litigation References (sources) 2

3 Administrative Procedure Act (APA), 5 USC The law authorizes judicial review of Federal agency actions Section 702 Right of Review a person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof Must state a claim that the agency officer or employee failed to act For relief other than money damages 3

4 The Administrative Procedure Act (APA), Cont d Section 704 Actions Reviewable - agency action is subject to review on the final action (not preliminary or intermediate action) Section 705 Relief Pending Review - when justice so requires, the court may postpone agency action pending judicial review to the extent necessary to prevent irreparable harm Preliminary injunction: order to stop an action until the case is decided Used where it is likely the requester will prevail on the merits, but will suffer irreparable injury (balancing hardships), and granting an injunction is in the public interest 4

5 The Administrative Procedure Act (APA), Cont d Section 706 Scope of Review - the court will decide all relevant questions of law, interpret constitutional and statutory provisions, and determine meaning or applicability of the terms of an agency action in making the foregoing determinations, the court shall review the whole record The court makes a substantial inquiry into whether the agency took a hard look at the environmental impacts of the proposed action: Was there a good rationale for the final decision? Was the administrative process followed correct? 5

6 Role of the Court and Standard of Review Standard of Review How much deference a court gives the Agency s decision Courts do not consider the merits of the agency s decision and defer to the agency s expertise when the agency has taken a hard look and has seriously considered the consequences of the decision Courts will not substitute their judgment for that of the agency Generally, judicial review is based solely on the AR Opportunity to supplement is an exception 6

7 Role of the Court and Standard of Review The court will set aside agency actions, findings, or conclusions that are: Arbitrary, capricious, or an abuse of discretion Not in accordance with the law or agency procedures Potential problem areas: There is a clear error in judgment (did you ignore what the experts were saying?) The relevant factors were not considered (did you make assumptions without a basis?) There is no rational basis for the decision (did you forget an important aspect of the problem?) There is failure to follow the prescribed procedures 7

8 What is an AR and how is it used? Collection of documents the whole decisional record : Contains the planning document EIS, EA, Categorical Exclusion (CATEX), and all relevant studies and data used to prepare the planning document Includes all information used by the decision maker while making a decision on the proposed action Presents a paper trail of the decision making process Used to show a court that the agency followed its own regulations Proof that the agency s action was reasonable 8

9 When Do You Build One? Often the project file becomes the AR There is a risk that mistakes will be made and something important will be left out Where a proposed action is controversial or litigation is likely, consider developing a separate litigation-oriented AR Best time: when the events are taking place Copies of documents go into a project file as they are created 9

10 Documents Included in the AR All documents used by or available to the decision maker Final documents: Planning documents (CATEX, EA/FONSI, EIS/ROD) Communications and comments from other agencies Relevant decision memoranda, summaries and notes Factual information: Studies, literature, and scientific reviews Manuals, studies, data, evaluations, science and impactrelated documents, expert opinions, including conflicting and contradictory material 10

11 Documents Included in the AR Cont d Administrative materials: Communication with the public and reports Public participation documents (mailing lists, public notices) Guidance regarding gathering and compiling record Privileged materials should be included in the AR, but may be withheld in litigation: Classified documents, trade secrets, and proprietary data Attorney-client privilege and attorney work product Pre-decisional and deliberative process materials (may be subject to discovery after ROD) 11

12 Documents Excluded From the AR Documents and material not available to the decision maker: Drafts: Personal versions of documents (not forwarded for review) Pre-final expert opinions, staff reports, and meeting notes of deliberations Post-ROD documents Personal traffic 12

13 Tips on Creating the Ideal AR for Litigation Designate a curator/records custodian and certifying official Place in a secure, convenient location Determine what organization is responsible for what portion Operational units and commands may need special assistance Do not treat as a working file on the project Use duplicates Do not write on or make annotations 13

14 Tips on Creating the Ideal AR Cont d Create a Record Index Catalogue documents by chronology within subject matter or issue-related filings Segregate, index, and mark privileged material Have policy and strategy guidance available (may want separate guidance if in litigation) Involve your environmental counsel in the process at the inception 14

15 In Closing Benefits of constructing a thorough AR: Decision is made on the AR; Encourages judicial deference; Heads off extensive discovery where complete; and Limits witnesses requested by court; Use the AR to show informed decision making: We took a hard look at the environmental impacts associated with our proposed action We followed the procedures mandated by law We showed there is a rational basis for our decision 15

16 Federal DoD-related References (Secondary Sources) Department of Justice, Guidance to Federal Agencies on Compiling the Administrative Record, available at Environmental Law Division Note, Compiling an Administrative Record, The Army Lawyer, March 2000, pp

17 Questions? 17