Administrative LawAdministrative Law

The Enactment of Rules and The Enactment of Rules and Regulations Regulations

Statutes and RegulationsStatutes and Regulations

Legislatures enact laws that may or may Legislatures enact laws that may or may not be signed by the executive branchnot be signed by the executive branch

If signed, these laws are known as statutesIf signed, these laws are known as statutes

The law may direct an agency to develop The law may direct an agency to develop rules that would govern a person’s or rules that would govern a person’s or company’s actions under the lawcompany’s actions under the law

These rules are known as regulationsThese rules are known as regulations Agencies administer and execute lawsAgencies administer and execute laws

Agencies are known by different names such as boards, Agencies are known by different names such as boards, departments, bureaus, commissions, or divisionsdepartments, bureaus, commissions, or divisions

Agency ActionsAgency Actions

Agency action means an agency rule, order, Agency action means an agency rule, order, sanction, or even an agency’s failure to actsanction, or even an agency’s failure to act Ex parteEx parte communications are oral or written communications are oral or written

communications that are not included on the public record communications that are not included on the public record of the rule or caseof the rule or case

Federal Administrative Procedure ActFederal Administrative Procedure Act FAPA was created to define a federal agency’s actions as FAPA was created to define a federal agency’s actions as

they related to creating public rules and granting permits they related to creating public rules and granting permits and licensesand licenses

Agencies must make available to the public any information, Agencies must make available to the public any information, orders, and procedures that would affect the publicorders, and procedures that would affect the public

This means that essentially all agency files and documents This means that essentially all agency files and documents except those exempted from disclosure must be released to the except those exempted from disclosure must be released to the public if requested- Public Information – § 552 – FOIApublic if requested- Public Information – § 552 – FOIA

Rule MakingRule Making Rulemakings can be either formal or Rulemakings can be either formal or

informal proceedingsinformal proceedings FAPA requires publication of a Notice of FAPA requires publication of a Notice of

Proposed Rulemaking, also known as an Proposed Rulemaking, also known as an NPRM, in the NPRM, in the Federal RegisterFederal Register

The agency publishes the rule in final The agency publishes the rule in final form, known as a Final Rule, also form, known as a Final Rule, also published in the published in the Federal RegisterFederal Register

An intermediate rule is known as an An intermediate rule is known as an Interim RuleInterim Rule

Code of Federal Regulations & Code of Federal Regulations & The Federal RegisterThe Federal Register

Code of Federal RegulationsCode of Federal Regulations The The Code of Federal RegulationsCode of Federal Regulations, or , or CFRCFR, is an , is an

annual compilation of federal rulesannual compilation of federal rules Federal RegisterFederal Register

The The Federal RegisterFederal Register, also known as the , also known as the FRFR, is , is a daily journal of federal agenciesa daily journal of federal agencies

The The FRFR is published Monday through Friday, is published Monday through Friday, except for legal holidaysexcept for legal holidays

Many states have similar journals or Many states have similar journals or registers and administrative code registers and administrative code compilationscompilations

ProceedingsProceedings Hearings and Other MattersHearings and Other Matters

If necessary an agency may hold hearings to If necessary an agency may hold hearings to discuss a proposed rulediscuss a proposed rule

Interested persons and parties affected by the Interested persons and parties affected by the rule may appear and give testimony and present rule may appear and give testimony and present evidenceevidence

Agency Decisions, Ex Parte Contacts and Agency Decisions, Ex Parte Contacts and the Recordthe Record During a rulemaking procedure, the agency will During a rulemaking procedure, the agency will

create a Record of its decision for a Final Rulecreate a Record of its decision for a Final Rule The Record comprises all the various comments, The Record comprises all the various comments,

testimony and exhibits presented to the agency testimony and exhibits presented to the agency concerning the matterconcerning the matter

ProceedingsProceedings Items not in the Record cannot Items not in the Record cannot

usually be scrutinized by a reviewing usually be scrutinized by a reviewing court in its review of the regulation court in its review of the regulation or the agency’s actions in or the agency’s actions in promulgating the regulationpromulgating the regulation Those items derived from the Those items derived from the ex parteex parte

contact may be stricken from the Recordcontact may be stricken from the Record This may result in the dismissal of the This may result in the dismissal of the

proponent’s petition or request for a proponent’s petition or request for a rulemakingrulemaking

PermitsPermits PermitsPermits

An agency may grant a person or company a An agency may grant a person or company a permit to operate its facilitypermit to operate its facility

A typical permit to discharge into waters and A typical permit to discharge into waters and streams is governed by the National Pollution streams is governed by the National Pollution Discharge Elimination System (NPDES) under Discharge Elimination System (NPDES) under the Clean Water Act (CWA)the Clean Water Act (CWA)

Permits may contain specific limitations on the Permits may contain specific limitations on the types and amounts of pollutants that may be types and amounts of pollutants that may be dischargeddischarged

A violation of any of the discharge limits is a A violation of any of the discharge limits is a violation of the applicable statuteviolation of the applicable statute

These violations can carry significant finesThese violations can carry significant fines

Permit ApplicationsPermit Applications

A permit application must be A permit application must be submitted to the agencysubmitted to the agency

The permit application process may be The permit application process may be governed by specific proceduresgoverned by specific procedures

After review of the permit application, After review of the permit application, hearing testimony and other hearing testimony and other information, the agency may issue the information, the agency may issue the permitpermit

The permit applicant can appeal the The permit applicant can appeal the agency’s final permit determinationagency’s final permit determination

AdjudicationsAdjudications AdjudicationAdjudication

an agency may also hold hearings to determine whether the an agency may also hold hearings to determine whether the rules have been violatedrules have been violated

These hearings are called administrative adjudicationsThese hearings are called administrative adjudications The parties may be represented by attorneys and The parties may be represented by attorneys and

can obtain information from the other party by can obtain information from the other party by subpoenasubpoena

Additionally, the parties may present information and evidence Additionally, the parties may present information and evidence on their behalf, conduct depositions and questioning of on their behalf, conduct depositions and questioning of witnesses, and make appropriate motions during the course of witnesses, and make appropriate motions during the course of the hearingthe hearing

At the conclusion of the hearing, the agency will issue its At the conclusion of the hearing, the agency will issue its decisiondecision

This decision, testimony and information constitute the Record This decision, testimony and information constitute the Record for the hearingfor the hearing

Appeals from the agency’s decision will refer to this RecordAppeals from the agency’s decision will refer to this Record

The Appellate ProcessThe Appellate Process AppealsAppeals

Appeals from FAPA rulemaking or permit Appeals from FAPA rulemaking or permit decisions are governed by §§ 701 to 706decisions are governed by §§ 701 to 706

These sections describe the type of actions These sections describe the type of actions that can be appealed and the permissible that can be appealed and the permissible scope of reviewscope of review

Additionally, the statute under which an Additionally, the statute under which an appeal is brought may also provide appeal is brought may also provide procedures for an appeal of an agency’s procedures for an appeal of an agency’s actionaction

Judicial ReviewJudicial Review Scope of ReviewScope of Review

A reviewing court has limited discretion as to what type A reviewing court has limited discretion as to what type of agency actions can be reviewed or how it may review of agency actions can be reviewed or how it may review those actionsthose actions

If the agency’s action was “arbitrary and capricious,” If the agency’s action was “arbitrary and capricious,” there may be significant reason for appealingthere may be significant reason for appealing

Arbitrary and capricious means that the agency’s Arbitrary and capricious means that the agency’s actions were not based upon the Record in the actions were not based upon the Record in the rulemaking or permit decisionrulemaking or permit decision

Other reasons the court may give in setting aside the Other reasons the court may give in setting aside the agency’s decision include (i) the agency’s acting beyond agency’s decision include (i) the agency’s acting beyond its statutory authority, (ii) its failure to abide by its statutory authority, (ii) its failure to abide by procedural requirements, or (iii) the decision’s being procedural requirements, or (iii) the decision’s being found unwarranted by the facts in the rulemaking or found unwarranted by the facts in the rulemaking or permit decisionpermit decision