Download - Adjudication+slidaes

8/10/2019 Adjudication+slidaes

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Highlights from last class

Agency Structure

Ad law texts

Nondelegation Doctrine

Adjudication versus rulemaking

APA procedures for RM Hybrid RM

logical outgrowth test

Nonlegislative rules


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Memo for February 18th

Case study materials posted on Sakai

LEAD Fellows will break you into 4-person

groups

Memo due in-class

3 pages max

Start early!

You have the skills to start now

LARW regular assignment due on the 17th


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Exam

February 25th

1.5-2 hours

Two questions

Fact pattern

Clear legal question

Broader policy question

Use examples from class and readings


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APA, 706Scope of Review

706(2)(C)

(C) in excess of statutory jurisdiction, authority,

or limitations, or short of statutory right;

Ultra Vires


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706(2)(E)

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this titleor otherwise reviewed on the record of an

agency hearing provided by statute;

Formal rulemaking and adjudication


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706(2)(A)

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

Informal rulemaking


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Citizens to Preserve Overton

Park v. Volpe (1971) 4(f) of the Department of Transportation

Act of 1966

government must demonstrate that there wereno "feasible and prudent" alternatives to

building through public lands.

Highway planned through Overton Park in

Memphis, TN


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Hard Look Doctrine

The generally applicable standards of 706 require the

reviewing court to engage in a substantial inquiry. Certainly,

the Secretary's decision is entitled to a presumption of

regularity. But that presumption is not to shield his action

from a thorough, probing, in-depth review

Although this inquiry into the facts is to be searching and

careful, the ultimate standard of review is a narrow one. The

court is not empowered to substitute its judgment for that of

the agency.


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What is the proper role for

courts? Scientific Model

Weber, disinterested experts, efficient

delegation

Interest Group Representation

Same politics as everywhere else, danger ofcapture


10/25

How much deference should

courts give agencies? Scientific Model

Interest Group Representation


11/25

Chevron v. NRDC (1984)

Clean Air Act requires EPA and states toestablish a permit program regulating "new or

modified major stationary sources" of air

pollution

What is a stationary source?


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10 TONS 10 TONS 10 TONS 10 TONS

Permit imposes a 10% reduction in emissions


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36 TONS

9 TONS 9 TONS 9 TONS9 TONS

6 TONS

36 TONS

10 TONS10 TONS10 TONS

Bubbling

=


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Chevron Two-Step

(1) 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 unambiguouslyexpressed intent of Congress.

(2) If the statute is silent or ambiguous with

respect to the specific issue, the question for thecourt is whether the agency's answer is based on a

permissible construction of the statute.


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Why might Congress be

unclear? Never considered issue

Desired agency to make policy choice (and

take the political heat)

Unable to reach compromise on the issue so

fudged it


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Theories underpinning the

Chevron test Separation of powers

Unique role of agencies vs. Marbury

Democratic theory

Problems of legislating from the bench

Comparative institutional competence

Managing case load


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????


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No Vehicles in the Park

How would you apply Chevron Step 1?

What evidence would you use to

demonstrate Step 1 had been satisfied?


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Legislative History

Original bill as introduced

Hearings on bill by Committees

Rejection of amendments

Floor debates

Conference committee action

Committee reports


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Babbitt v. Sweet Home (1995)

Section 7

Feds cant jeopardize species existence or

adversely modify critical habitat

Section 9

No one can take a species

Section 10Feds can grant an incidental take permit


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Spotted owls nesting in Northwest old

growth redwoods

Prime logging territory


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Section 9

it is unlawful for any person subject to the

jurisdiction of the United States to(B) take

any such species within the United States or the

territorial sea of the United States."

Section 3(19)

The term take means to harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or

collect, or to attempt to engage in any such

conduct.


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CFR

Harm in the definition of take in the Act

means 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.


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What does harm mean?

Dictionary definition

Purpose of statute Context of text

noscitur a sociis Legislative history