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

Memo for February

th
18

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

Exam
February 25th
1.5-2 hours
Two questions
Fact pattern
Clear legal question

Broader policy question

Use examples from class and readings

APA, 706 Scope of Review

706(2)(C)
(C) in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right;

Ultra Vires

APA, 706 Scope of Review

706(2)(E)
(E) unsupported by substantial evidence in a
case subject to sections 556 and 557 of this title
or otherwise reviewed on the record of an
agency hearing provided by statute;

Formal rulemaking and adjudication

APA, 706 Scope of Review

706(2)(A)
(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;

Informal rulemaking

Citizens to Preserve Overton

Park v. Volpe (1971)
4(f) of the Department of Transportation
Act of 1966
government must demonstrate that there were
no "feasible and prudent" alternatives to
building through public lands.
Highway planned through Overton Park in
Memphis, TN

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.

What is the proper role for

courts?
Scientific Model
Weber, disinterested experts, efficient
delegation

Interest Group Representation

Same politics as everywhere else, danger of
capture

How much deference should

courts give agencies?
Scientific Model

Interest Group Representation

Chevron v. NRDC (1984)

Clean Air Act requires EPA and states to
establish a permit program regulating "new or
modified major stationary sources" of air
pollution
What is a stationary source?

10 TONS

10 TONS

10 TONS

10 TONS

Permit imposes a 10% reduction in emissions

Bubbling
36 TONS

9 TONS

9 TONS

9 TONS

9 TONS

36 TONS

10 TONS

10 TONS

10 TONS

6 TONS

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 unambiguously
expressed intent of Congress.

(2) If the statute is silent or ambiguous with

respect to the specific issue, the question for the
court is whether the agency's answer is based on a
permissible construction of the statute.

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

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

????

No Vehicles in the Park

How would you apply Chevron Step 1?
What evidence would you use to
demonstrate Step 1 had been satisfied?

Legislative History

Original bill as introduced

Hearings on bill by Committees
Rejection of amendments
Floor debates
Conference committee action
Committee reports

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 10
Feds can grant an incidental take permit

Babbitt v. Sweet Home (1995)

Spotted owls nesting in Northwest old
growth redwoods
Prime logging territory

Babbitt v. Sweet Home (1995)

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.

Babbitt v. Sweet Home (1995)

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.

What does harm mean?

Dictionary definition
Purpose of statute
Context of text
noscitur a sociis

Legislative history