ARE 309 Chapter 3 Administrative Law & Procedure

Transcription

1 ARE 309- Environmental Law Chapter 3 Slide 3-1 Major Topics 1. Overview 2. Administrative Agencies Enforcement 5. Adjudication 6. Agency Organization Slide 3-2 Topic 1. Overview Definition of Administrative Law Why it is important to Environmental Law Eight characteristics of Administrative Law Slide J.M. Kuszaj Chapter 3 Page 1

2 Definition of Administrative Law The procedures governing how the executive branch carries out and enforce substantive statutes and regulations Administrative proceeding take place before an administrative body as distinguished from proceedings in court Slide 3-4 Why Administrative Law and Procedures Are Important 80% to 90% of disputes concerning environmental laws and regulations involve administrative law issues Issuance of permits Assessment of civil penalties for violations Slide 3-5 Eight Characteristics of Administrative Law 1. Agency rules have the force and effect of law 2. There is a right to contest any agency action Before the Agency Court Slide J.M. Kuszaj Chapter 3 Page 2

3 Eight Characteristics of Administrative Law 3. Administrative agencies have no inherent or residual authority Legislature must grant them specific authority Slide 3-7 Eight Characteristics of Administrative Law 4. Administrative agencies must act in accordance with the statute, their own rules, regulations, and procedures Example: permitting landfill Slide 3-8 Permitting Landfill Case Anson County Citizens Against Chemical Toxins In Underground Storage v NC-DENR f Issue: Did the Agency follow the law in reviewing the compliance history of the permit applicant? Held: No Result: Permit was denied Slide J.M. Kuszaj Chapter 3 Page 3

4 Holding The Division s failed to act as required by law or rule in reviewing the history of environmental compliance of the permit applicant for the following reasons: a. The Division failed to make any effort to look behind the data submitted by the applicant or to gather any of its own data. A citizen using the Internet, Ms. Lee, was able to rather easily come up with numerous violations committed by the applicant that were neither submitted by the applicant nor otherwise obtained by the Division. b. Incredibly, the Division failed to contact for further information any of the State or Federal authorities that had cited the applicant or that had prosecuted the applicant for criminal violations, relying solely instead on brief, self-serving summaries of the violations compiled by the applicant. c. The Division very nearly disregarded violations outside North Carolina, with no rational explanation for having done so, especially with regard to a large, multinational corporate applicant that does most of its business outside North Carolina. The statute does not limit the review to violations in North Carolina; Slide 3-10 Eight Characteristics of Administrative Law 5. Agency actions may not be arbitrary and capricious There must be an explanation, but it may be one of many possible explanations Slide 3-11 Eight Characteristics of Administrative Law 6. An agency s interpretation of its own regulations and statutes will generally be granted deference Courts are reluctant to substitute their interpretation for that of the agency Slide J.M. Kuszaj Chapter 3 Page 4

5 Eight Characteristics of Administrative Law 7. Agency decisions may be contested by the affected party and in some cases by third parties Slide 3-13 Eight Characteristics of Administrative Law 8. On appeal, courts generally uphold agency actions Slide 3-14 Major Topics 1. Overview 2. Administrative Agencies Enforcement 5. Adjudication 6. Agency Organization Slide J.M. Kuszaj Chapter 3 Page 5

6 Topic 2. Administrative Agencies What Are They What Do They Do What Are Their Limits Slide 3-16 Administrative Agencies What Are they Any body created by a legislative branch to carry out specific duties authorized by statute Examples: Federal Environmental Protection Agency (EPA) NC Department of Environment and Natural Resources (DENR) Environmental Management Commission (EMC) Slide 3-17 Administrative Agencies What they do Three Major Functions of Agencies: [quasi-legislative] Write the regulations Enforcement [executive] Enforce the regulations they write Adjudication [quasi-judicial] Adjudicate disputes over application of the rules Slide J.M. Kuszaj Chapter 3 Page 6

7 Administrative Agencies Exercising Three Functions of Government Sometimes Referred to Fourth Branch of Government Why? Is this accurate? Slide 3-19 Administrative Agencies What Are Their Limits Courts can review their actions Was it arbitrary and capricious standard Executive Branch can review their actions Administrative Law Judges Can the Legislative Branch review their actions? Slide 3-20 Administrative Agencies Legislative Review & Controls Federal Agencies Rules Subject to override under Congressional Review Act Example: Federal Ergonomics Standard (2001) North Carolina Rules Subject to legislative override under Administrative Procedures Act Slide J.M. Kuszaj Chapter 3 Page 7

8 Congressional Review Act Agencies must submit all new rules to Congress Congress has 60 session days to review and possibly reject agency rules Special expedited procedures limit debate in the House and ban a Senate filibuster If the motion to disapprove passes in both the House and Senate, and is then signed by the President, the rule essentially disappears Slide 3-22 Rules Sent to Congress Under the Congressional Review Act Fact: Between April 1, 1996 and March 13, 2001: 21,653 rules were submitted to Congress for review. Fact: Number of rules disapproved by Congress = 1. Slide 3-23 Congressional Review Act The Senate voted to repeal the OSHA Ergonomics rule on March 6, 2001, by a vote of 56 to 44. A day later on March 7, 2001, the House of Representatives voted to repeal the final rule by a vote of 223 to 206. President Bush signed the Resolution for Disapproval on March 20, 2001 effectively repealing the OSHA Ergonomics program Final Rule. Slide J.M. Kuszaj Chapter 3 Page 8

9 Major Topics 1. Overview 2. Administrative Agencies Enforcement 5. Adjudication 6. Agency Organization Slide 3-25 Topic 3. What is a rule Economic impact of rules Types of rules How a rule is adopted Federal procedure NC procedure Slide 3-26 What is a rule Any agency regulation, standard or statement of general applicability that implements or interprets a statute or that describes the procedure or practice requirements of an agency Rule = Regulation Slide J.M. Kuszaj Chapter 3 Page 9

10 The Number of Federal Regulations Is Increasing at A Record Rate Slide 3-28 Major Federal Rule Defined: Rules that will have an annual effect on the economy of more than $100 million. Slide 3-29 Major Rules Slide J.M. Kuszaj Chapter 3 Page 10

11 The Growth Of Federal Regulations The Code of Federal Regulations (CFR), an annual listing of executive agency regulations published in the Federal Register, includes all regulations now in effect In 1970, the CFR filled 114 volumes with a total of 54,834 pages In 1998, the CFR filled 201 volumes with a total of 134,723 pages; it occupies 19 feet of shelf space. Slide 3-31 Lots of Regulations = Big Regulatory Bureaucracy In fiscal year (FY) federal departments and agencies Over 130,000 federal employees Will spend over $18.7 billion Writing and enforcing federal regulations. Slide 3-32 Environmental Regulations Account For 1/3 of All Federal Regulatory Costs Slide J.M. Kuszaj Chapter 3 Page 11

12 The Cost of Federal Regulations Estimates of how much federal regulation will cost in FY 2000 range from $200 billion to more than $700 billion About $6,800 per year for each American family Slide 3-34 Three Basic Types of Permanent Rules Notice & Comment Temporary Rules (North Carolina) Exempt General policy statements Interpretations Slide 3-35 How a rule is adopted (generic process) Publish notice of proposed rule Solicit public comment written public hearings Publish text of final rule Establish effective date Establish way to challenge the rule Slide J.M. Kuszaj Chapter 3 Page 12

13 Adopting a Federal rule See Course Material Federal Process A Clean Air Act Example Eight Step Process Slide 3-37 Adopting a Federal rule How long does this all take? Slide 3-38 Adopting a North Carolina rule A bit more complicated than Federal Slide J.M. Kuszaj Chapter 3 Page 13

14 Adopting a North Carolina rule A 10 step process for permanent rules As specified in: North Carolina Administrative Procedure Act (APA) N.C.G.S. Chapter 150B See Class Material Slide 3-40 Adopting a North Carolina rule-(steps 1-3) Step 1: Publish notice of rule making proceedings in North Carolina Register Published 1st and 15th of each month Step 2: Allow at least 60 days for public comment Step 3: Agency prepares fiscal note if state $ or local gov t $ involved if substantial economic impact ($5M) Slide 3-41 Adopting a North Carolina rule -(Steps 4-6) Step 4: Publish text of proposed rule in North Carolina Register Step 5: Mail notice of proposed rule to official mailing list Step 6: Holding a public hearing if requested if Agency wants to Slide J.M. Kuszaj Chapter 3 Page 14

15 Adopting a North Carolina rule -(Steps 7-8) Step 7: Accept written comments on proposed rule Step 8: Adopt final rule w/i 12 months if same as proposed rule text is NOT published in NCR if substantially different republish text and accept written comment for 30 days Slide 3-43 Adopting a North Carolina rule -(Step 9) Step 9: Submit rule to Rules Review Commission ( RRC ) Approve the rule Reject the rule no statutory authority unclear or ambiguous not reasonably necessary adopted by improper procedure Slide 3-44 Adopting a North Carolina rule -(Step 10) Step 10: Establish the effective date of the rule. If RRC objects to the rule Rule does not go into effect/; send back to Agency If RRC approves the rule Rule goes to the NC General Assembly Slide J.M. Kuszaj Chapter 3 Page 15

16 Adopting a North Carolina rule -(Step 10+) At the NCGS the rule does not go into effect until the earlier of: the 31st legislative day or the day of adjournment of the next regular session of the General Assembly that begins at least 25 days after the RRC approves a rule Unless, prior to that date, a bill is introduced disapproving the rule Slide 3-46 Adopting a North Carolina rule So how long does it take to adopt a permanent rule in North Carolina?? What do you do it you need a rule sooner? Slide 3-47 Adopting a North Carolina rule For one of six reasons Agency can by-pass permanent ruling making process Adopt Temporary Rules Slide J.M. Kuszaj Chapter 3 Page 16

17 Adopting a North Carolina Temporary Rule Allowed in six situations serious & unforeseen threat to public health, safety, or welfare effective date of new state or federal law recent change in federal or state budgetary policy federal regulation court order State Medical Facilities Plan Slide 3-49 Adopting a North Carolina Temporary Rule Step1: Agency prepares a finding of need citing one of the 6 statutory factors Step 2: Agency submits finding to Codifier of Rules Step 3: Codifier has one business day to review finding of need Step 4: Publishes the rule in North Carolina Register with immediate effective date Slide 3-50 Judicial Review of Rules How, When and Where you can challenge a rule differ: Federal rules State rules Many federal rules are litigated Most state rules are not litigated Slide J.M. Kuszaj Chapter 3 Page 17

18 Challenging Federal Rules Which Court: Varies with the individual law [Examples] Time for Appeal Varies with the individual law Generally days after publication in FR Standard of Review Deference to Agency Unless rule is arbitrary and capricious Slide 3-52 Challenging North Carolina Rules No direct route to court for permanent rules Two options Wait until the DENR enforces the rule Raise the validity of the rule as a defense Ask for Declaratory Ruling from the Agency Slide 3-53 Challenging North Carolina Rules Declaratory Ruling Petition to Agency Asking the Agency to declare its rule invalid Agency s Decision on Declaratory Ruling may be appealed To Superior Court Wake County or County of residency Slide J.M. Kuszaj Chapter 3 Page 18

19 Judicial Standard of Review Review of the written record of rulemaking To determine if there is some evidence for Agency s actions Arbitrary & Capricious Court will not substitute its judgment for the agency Agency s generally win! Slide 3-55 Major Topics 1. Overview 2. Administrative Agencies Enforcement 5. Adjudication 6. Agency Organization Slide 3-56 Agency Enforcement Agency Powers Power to enter you facility Power to investigate violations Power to assess civil penalties of up to $25,000/day/violation Power to issue orders Slide J.M. Kuszaj Chapter 3 Page 19

20 Agency Enforcement Agency Powers Civil Penalties Are On Line Slide 3-58 Major Topics 1. Overview 2. Administrative Agencies Enforcement 5. Adjudication 6. Agency Organization Slide 3-59 Agency Adjudication Appealing Agency Actions Against You Civil penalties $25,000 per day per violation Permits new renewals Slide J.M. Kuszaj Chapter 3 Page 20

21 Agency Adjudication Appealing Agency Actions Against You Federal and State procedures differ Federal--Governed by Federal APA 5 USC Section 500 et al State--Governed by State APA NCGS Chapter 150B Slide 3-61 Agency Adjudication Appealing North Carolina Actions Notice of Violation ( NOV ) Complaint/Order/Permit Issued day later you must: pay or accept permit ask for remission contest the action at Office of Administrative Hearings ( OAH ) Slide 3-62 Basic Steps In NC Administrative Appeals Step 1: Agency Action Permit Issuance or Civil Penalty Assessment Step 2: File Notice To Contest Agency Action: ****Time Limited ***** Usually within 30 days Step 3: Settlement of Case With Agency Legal & Technical Types Work Out Mutually Acceptable Solution Slide J.M. Kuszaj Chapter 3 Page 21

22 Basic Steps In NC Administrative Appeals Step 4: Hearing Before Administrative Law Judge Trial type proceeding Step 5: Initial Decision of Administrative Law Judge Step 6: Appeal to Agency Administrator or Board Review of written record created by ALJ Step 7: Final Order of Agency Step 8: Appeal to Court System Review of written record only Slide 3-64 The Truth About Administrative Appeals NC Contested Case Statistics [ ] ALJ rules for the Agency---75% Agency reverses ALJ in 1 % of these cases ALJ rules for the petitioner % Agency reveres ALJ in 90% of these cases Slide 3-65 The Truth Petitioner has about a 3% chance of winning its appeal at the administrative level Slide J.M. Kuszaj Chapter 3 Page 22

23 Agency Adjudication Permitting Complete Application Draft Permit Public Comment/Hearing Final Permit Decision Administrative Appeal Hearing Final Agency Action Slide 3-67 Who Can Appeal A Permit? The Facility Operating Permit Third Parties Citizens Other Agencies Competitors Slide 3-68 Major Topics 1. Overview 2. Administrative Agencies Enforcement 5. Adjudication 6. Agency Organization Slide J.M. Kuszaj Chapter 3 Page 23

24 Agency Organization Major Environmental Agencies Federal Environmental Protection Agency Headquarters Regional Offices North Carolina Department of Environment and Natural Resources ( DENR ) Central Office Regional Offices Slide 3-70 CERCLA Agency Organization Generally By Program Area Air Waste Toxics Water Slide 3-71 Agency Organization Federal EPA Regions North Carolina is in Region 4 Slide J.M. Kuszaj Chapter 3 Page 24

25 Agency Organization North Carolina DENR Regional Offices Slide J.M. Kuszaj Chapter 3 Page 25