(Monday, June 19th is a federal holiday and there are no classes.)

Assignment – Documentary on Rulemaking

Now that you have learned the basics of notice and comment rulemaking, we are going to look at rulemaking in action. This is PBS documentary about a rulemaking that took place in the late 1970s. The EPA was required by the courts to make rules to implement amendments to the Clean Air Act (CAA) that were intended to protect the views in the Grand Canyon and other national monuments from being obscured by pollution. While this rulemaking took place more than 40 years ago, the fights over these rules continue today, and Grand Canyon is still fouled with air pollution. This park service webcam shows a live view of the Canyon. If you select the Clear/Hazy tab, you can see the contrast between a clear day (when the winds blow the pollution away from the park and flying tours are limited) and a hazy day (when the conditions are less favorable and the pollution builds up in the park):

https://www.nps.gov/subjects/air/webcams.htm?site=grca

A major source of pollution in the park in the 1970s was the emissions from coal-fired electric generating plants. The largest was the Navajo generating plant. Over the past decade, the low price of natural gas has undercut the cost of energy generated by coal. Many coal-fired power plants have closed as utilities seek lower-cost electricity. Shifting to natural gas also reduces their carbon footprint because natural gas produces less carbon dioxide produced per kilowatt of electricity than does coal. The Navajo plant was closed in 2019 and was demolished starting in 2021. Unfortunately, other sources of pollution discussed in the film have increased.

The documentary starts with the park ranger whose pictures of the Grand Canyon stimulated environmental groups to lobby for amendments to the CAA. This was a period in US politics that is difficult to imagine today. Broad-reaching environmental laws with ambitious goals had bipartisan support in Congress. Most of the major environmental laws, including the law that pulled the various free-standing pollution agencies into the EPA, were passed during the Nixon administration. Several had the support of Nixon, who hoped to win the support of liberals who opposed him on the Vietnam War. The documentary shows a Congressional hearing with several Congressmen who were the authors of our basic environmental law framework. The bipartisan support for environmental laws was at the same time that Congress and the country were bitterly divided over the Vietnam War and the Civil Rights movement.

The documentary then shifts to the air pollution division of the EPA and the process of drafting the regulations. While the documentary was recorded over 40 years ago, the basic process is essentially the same today. The major change is that today the courts are now much more particular about the published record for the rule, making the drafting process longer and more complicated. Note the arguing over what the vague words in the statute would allow the agency to do in the regulations. We will think more about that when we look at the judicial review standards for ambiguous rules. Also, note the involvement of the Carter White House. The agency was facing both a court-ordered deadline and a political deadline. Carter was mired in the Iranian Hostage Crisis and far behind Ronald Regan in the polls. Regan was to end the bipartisan support for environmental laws, and the agency was concerned that if they did not get the rule finalized before the end of the Carter Presidency, it would be watered down by the Regan administration. (The Regan administration could not completely withdraw the rule because the statute required the agency to make the rule.)

While not required by the APA, the EPA had public hearings on these regs, as well as taking written comments through the usual APA notice and comment process. The hearings were held in the western states most affected by the regs. The bitter testimony against the regs and the EPA could be ripped from today’s headlines. The difference is that in 1979, the fight was over assuring a supply of cheap fossil fuel. Today the fight is over climate change.

As background, in 1973 the country had suffered a gasoline shortage and long lines at the pumps. This was caused by the newly formed OPEC embargoing oil exports to gain control of the market. While that embargo was short-lived, by 1979 OPEC had pushed crude oil prices up 10-fold to $25 a barrel, equivalent to about $100 today. By 1980, they reached their peak at about $140 a barrel in today’s dollars. At that point, OPEC’s power declined as new sources of oil were developed. But no one knew that would happen in 1979.

The fear of another OPEC boycott, combined with the ever-increasing cost of oil led to programs to make gasoline from coal, as Germany had done during WWII when it was cut off from oil imports. This comes up in some of the testimony. As a college student, I participated in earlier CAA hearings, which I can report resembled those in this documentary.

After the hearings and reviewing the public comments, the agency is forced to modify its original rule and to redo some of the background record to be published in the FR. It finally gets the rule finalized – in record time – before Carter had to leave office. This is a revealing look at the agency process and it is unlikely we will ever see another like it. Some of the participants, such as Jim Hawkins, went on to become leaders in the public environmental movement after leaving the government. I have not been able to find out what happened to the photographer who started it all.

One invaluable part of the documentary is the coverage of the lawyers who represented the electric power industry whose coal-fired power plants would bear the brunt of the regulatory costs of these rules. You can see how they represented their clients’ interests and how they interacted with the agency lawyers. You should also note the difference in the office settings between the EPA staff and the industry lawyers.

Video – The Regulators: Our Invisible Government (CSPAN)

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Reading Assignments

Part 1

Read Chapter 5 to C. The Procedures for Formal Rulemaking p. 176.

Video – Chapter 5 – What have we learned from The Regulators?

PowerPoint – Chapter 5 – What have we learned from The Regulators?

Video – Chapter 5 – Do You Have to Have Notice and Comment? 

PowerPoint – Chapter 5 – Do You Have to Have Notice and Comment?

Read Chapter 5 from C. The Procedures for Formal Rulemaking p. 176. to D. The Procedures of Notice-and-Comment Rulemaking, p. 180.

What do Formal Rulemakings look like – the Peanut Butter Saga

Before Ralph Nader there was the Peanut Butter Grandma – There is no video documentary about formal rulemaking, but there is the story of the fight over making a rule through formal rulemaking to define what could be sold as peanut butter. It is also a great human interest story. Ruth Desmond was a housewife who became the first consumer advocate to fight in the administrative law arena. She started in the 1950s, before Ralph Nader and the world of NGO (non-governmental organizations) advocates.

Her personal story – Veteran of the Peanut-Butter War

A brief review of the legal fight – Why Midcentury Lawyers Spent 12 Years Arguing About Peanut Butter

(Optional) NPR podcast, the third in a three-part series about the peanut butter saga and the role of the Peanut Butter Grandma. (The complete series and supporting information.)

Read E.Procedures for Rules Not Subject to Formal Rulemaking or Notice-and-Comment Rulemaking, p. 187 to 1. Executive Orders, p. 199.

Video – Chapter 5 – Other Exemptions from Notice and Comment Requirements

PowerPoint – Chapter 5 – Other Exemptions from Notice and Comment Requirements

Video – Chapter 5 – Other Forms of Rulemaking, Constitutional Issues (Vermont Yankee), Ex Parte Communications 

Powerpoint – Chapter 5 – Other Forms of Rulemaking, Constitutional Issues, (Vermont Yankee), Ex Parte Communications

Part 2

Finish Chapter 5. Review Chapter 2. The material on a. OMB/EO Review and b. b.Independent Regulatory Agencies (p. 66 – 69).

The objective of this assignment is to make you familiar with the basics of the regulatory review process. You should know the reasons why it is important, who carries it out, and the basic requirements to satisfy OIRA. You do not need to know the details of cost-benefit analysis. You should know the basic principle that regulations should provide more benefits than costs, that it is more difficult to monetize benefits and costs, and that benefits in the future have a lower value than immediate benefits.

The Regmap – a Review of Informal Rulemaking

This is a graphical review of informal rulemaking. I have used parts of it in the presentations.

Video –  Introduction to Cost-Benefit Analysis

Video – Cost-Benefit Scenarios

Video –  Discounting the future

These are three short videos that introduce the fundamentals of cost-benefit analysis for those of you who are not with CBA analysis from your other studies. Discounting the future discusses the problem of deciding how much to spend today to prevent problems in the future. This is a core question in rules to mitigate and adapt to climate change.

A short news item I discuss in the CBA introduction below: NBC News: How a single new Alzheimer’s drug could blow up the federal budget.

Video – Chapter 5: Cost/Benefit Analysis Background for Regulatory Review

PowerPoint – Chapter 5: Cost/Benefit Analysis Background for Regulatory Review

Video – Chapter 5: Executive Order and Statutory Requirements for Reviewing Rulemaking

PowerPoint – Chapter 5: Executive Order and Statutory Requirements for Reviewing Rulemaking

Part 3

Read Chapter 6 to 3. Prudential Standing, p. 235.

Much of this assignment should be a review of materials on standing that you covered in Constitutional Law I. I am reviewing this material to make sure that everyone has the same base knowledge. We are going to see these doctrines again as we read cases and pleadings as we work through the remainder of the course.

We will take a deeper dive into standing next week.

Video – Chapter 6 – Introduction and Statutory Jurisdiction

PowerPoint – Chapter 6 – Introduction and Statutory Jurisdiction

Video – Chapter 6 – The Injury Test for Standing

PowerPoint – Chapter 6 – The Injury Test for Standing

Video – Chapter 6 – Probabilistic Risk and Fear as Injury for Standing

PowerPoint – Chapter 6 – Probabilistic Risk and Fear as Injury for Standing

Video – Chapter 6 – Procedural Injuries

PowerPoint – Chapter 6 – Procedural Injuries

Video – Chapter 6 – Causation for Standing

PowerPoint – Chapter 6 – Causation for Standing

“Prudential” tests, such as zone of interest, are confusing. We are going to take a hard look at Lexmark, which is the most recent Supreme Court case to review prudential standing and zone of interests. The Lexmark Court attempts to simplify the notion of prudential standing. Perhaps more importantly, the Justices express their skepticism about the importance of these tests.

Edited – Lexmark International, Inc. v. Static Control Components, Inc. , 134 S.Ct. 1377 (2014)

I have heavily edited Lexmark. While the book mentions Lexmark, it does not integrate Lexmark with the previous zone of interest cases. While zone of interest analysis is not dead, it is now just another statutory construction tool.

Lexmark Oral Argument – Start at 19:15 and listen to the end. (you can search for – couple points about the zone of interest – to go to that point.)

Supreme Court oral arguments have been recorded for decades. They provide examples of oral advocacy at the highest level and they provide insights into the judges thinking that may not appear in the published opinions.

Read Chapter 6 to IV. Problems of Timing, p. 252.

This includes the discussion of the zone of interest cases, which you should read with Lexmark in mind.

Video – Chapter 6 – Exceptions to Judicial Review/Committed to Agency Discretion by Law

PowerPoint – Chapter 6 – Exceptions to Judicial Review/Committed to Agency Discretion by Law

Video – Chapter 6 – Zone of Interests

PowerPoint – Chapter 6 – Zone of Interests

 

Part 1 – Pleading an Administrative Law Case

The best way to review and synthesize our readings is to see how you would use them in practice. You have read materials on jurisdiction and venue and the basics of standing. In the following video, I do a detailed analysis of the original complaint in a typical administrative law case. The plaintiffs are NGO environmental groups, the defendants are the Secretary of the Interior, the Assistant Secretary, and the department itself. The claim is that the agency acted in an arbitrary and capricious manner by allowing the leasing of offshore lands for oil exploration and production without an adequate Environmental Impact Statement. We are looking at the general procedural and pleading issues, not the specific details of the NEPA violation. You should learn the order of the complaint and the basic issues you have to establish to state your case. (This should be a review of material you covered in Civil Procedure, with the specific administrative law focus.)

Video – Analysis of an Original Complaint in an Administrative Law Case (NEPA)

Annotated complaint reviewed in the video – 2023 Adlaw – Friends of the Earth v. Haaland

Court opinion – Friends of the Earth v. Haaland – Opinion (27 Jan 2022) – annotated copy

Just look at the footnotes on pages 11&12 – the Court found that the general statements that members of the organizations recreated and visited the Gulf was enough to satisfy standing.

In contrast, we are going to look at a 5th Cir case on nearly the same standing facts and see what it looks like when a court wants to deny standing to plaintiffs.

Review the highlighted portions – Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102, 2019 WL 4126355 (5th Cir. Aug. 30, 2019

This is the court’s order dismissing the case based on not finding that the plaintiffs had standing. I have highlighted the key sections so you can scroll through and review the court analysis. The key is that the court rejects claims that point source pollution from rigs affects the entire Gulf. This discussion starts on page 7. The failure to do a proper NEPA review is a procedural rights claim, subject to the relaxed standards for injury in procedural rights claims. Despite this, the plaintiffs fail because the nature of rigs in the Gulf makes it difficult for individuals to show a nexus between a discharge by a specific rig and their injuries proximate to that rig. This allows EPA to escape citizen suit review even if it issues a bad permit. The lesson is to not file an environmental case in the 5th circuit if you can avoid it.

Part 2 – A Deep Dive into Mass. v. EPA

Video – Introduction to our deep dive into Mass. v. EPA

Climate change is the most important long-term regulatory problem facing the United States. Massachusetts v. EPA, 549 U.S. 497 (2007) is the key standing that allows citizen groups to get into court on federal climate change cases. (Mass. v. EPA also has a major section on whether GHGs are properly regulated under the Clean Air Act. We are not reading that section for this class.) It is also a good illustration of the problem of getting standing for widespread injuries, as well as the process of petitioning for a rulemaking. We are going to start with a brief look at the state of the scientific understanding of the role of human greenhouse gas (GHG) emissions in causing climate change at the time this case was argued before the Supreme Court. The Intergovernmental Panel on Climate Change (IPCC) is the United Nations body for assessing the science related to climate change. The IPCC has been surveying the scientific literature and preparing synthesis reports on the science of climate change since 1988. We are going to look at the report that was published in 2007, which would have been available in draft form when the case was argued:

IPCC Climate Change 2007: Synthesis Report

Read through p. 5.

One of the important standing facts in Mass. v. EPA is the effect of climate change on coastal property. Massachusetts has a long coastline with Boston on the coast and valuable beachfront property. Louisiana is the most at-risk state for land loss due to sea level rise secondary to global warming. The next presentation reviews the key information from the IPCC report and shows the potential impacts of sea level rise on coastal property, with special emphasis on Louisiana. Now that we are in hurricane season again, this will also give you a better understanding of why Louisiana is so prone to catastrophic hurricane surge damage. This is relevant to materials on suing the government in Week 7.

Video – Chapter 6: Climate Change Background for Mass. v. EPA

PowerPoint – Climate Change Background for Mass. v. EPA

The case began when the petitioners submitted a petition for rulemaking under APA § 553 (e) to the EPA, asking it to make a rule controlling greenhouse gases (GHGs). The APA provides that each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. This is the text (not a scan of the original document) of that petition:

PETITION FOR RULEMAKING AND COLLATERAL RELIEF SEEKING THE REGULATION OF GREENHOUSE GAS EMISSIONS FROM NEW MOTOR VEHICLES UNDER § 202 OF THE CLEAN AIR ACT

Scan through this to see the format. It is a simple document that begins with the requested regulation, then the parties who are requesting the regulation, then the legal justifications for the request.

The EPA answered the petition saying that it did not have the legal authority to regulate GHGs and that even if it did have the authority, it did not think it would be good policy to regulate them. The petitioners then challenged the EPA ruling in Cir. Court, arguing that the agency did have the authority to regulate GHGs. The Circuit Court upheld the EPA action, but did not address the standing issue:

Massachusetts v. E.P.A., 415 F.3d 50 (D.C. Cir. 2005)

Read the highlighted text on pp. 9-10. The court reasoned that if it found that the EPA action was proper, it would not have to resolve the standing issue.

Petitioners then filed a writ of certiorari seeking review by the Supreme Court.

EPA Response Brief to Writ of Certiorari in Mass v. EPA (edited for standing argument)

Read this excerpt from the brief. This sets up the issues for the Supreme Court review of standing. We are now going to listen to the arguments before the Supreme Court on standing:

Oral argument in Mass v. EPA (Oyez)

The petitioner’s standing argument starts at 0 (beginning of the recording to 17:55. The EPA response starts at 27:00 and runs to 45:20. If you have not used Oyez before, it links the written transcript of the oral argument to the audio. It also identifies the judges speaking to make it easier to follow the argument. The argument is excellent. When you read the Supreme Court opinion you will see how the questions from the argument end up in the majority and dissenting opinions. There is a bitter split in the court over the standing issue. All of the conservative judges except Kennedy opposed standing in the opinion. Kennedy is gone and the new judges are likely to join those who opposed standing. This is at issue in a Supreme Court case decided last Friday and another expected this week. We will review the extent to which state standing in Mass. v. EPA changes next week when, hopefully, both cases will have been handed down.

We will finish our reading with the standing discussion in the majority and dissenting opinions in the case:

Massachusetts v. E.P.A., 549 U.S. 497 (2007) (edited for standing)

Video – Chapter 6: Massachusetts v. E.P.A.: Standing – Majority Opinion

PowerPoint – Massachusetts v. E.P.A.: Standing – Majority Opinion

Video – Chapter 6: Massachusetts v. E.P.A.: Standing – The Dissent

PowerPoint – Massachusetts v. E.P.A.: Standing – The Dissent

Resource Documents for Mass. v. EPA

Memo from EPA counsel Cannon finding that the Clean Air Act gave the EPA authority to regulate GHGs.

If you are interested, this is the EPA general counsel memo that was at issue in the case.

Part 2 – Finish Chapter 6

Video – Chapter 6 – Finality

PowerPoint – Chapter 6 – Finality

Video – Chapter 6 – Exhaustion of Remedies

PowerPoint – Chapter 6 – Exhaustion of Remedies

Video – Chapter 6 – Ripeness

PowerPoint – Chapter 6 – Ripeness

Study Guide – Chapter 6

Part 3 – Chevron and the Review of Agency Discretion

Chevron, from Chevron U. S. A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) has become shorthand for the test traditionally used by the Supreme Court to evaluate whether an agency has exceeded the will of Congress in enforcing a statute. Congress charges agencies through its legislation to address major problems such as pollution or assuring that airlines are operated safely. The legislation can only provide an outline of what the agency needs to do. This is for three major reasons. First, most problems require research to determine what needs to be done. When the Clean Air Act was passed, Congress did not know which pollutants were most dangerous and what were safe levels for the regulators to set as standards. This required years of research and much public input. Second, problems change over time. New chemicals are brought onto the market, airlines move from propellor planes to jets, COVID breaks out and agencies must react much faster than Congress can pass new laws. Finally, Congress often pushes controversial decisions to agencies because Congresspersons do not want to have to explain to voters why they made an unpopular decision. For example, Congress wants the FEMA-run National Flood Insurance Program to lose less money on the policies it writes. But when FEMA raises the rates to reflect the risk it is insuring, Congress holds hearings on why the public is being charged so much money for flood insurance.

This becomes a judicial problem when the agency policy is challenged and the Court has to decide whether the agency acted beyond the authority granted by Congress. The Chevron standard is that the Court should defer to the agency’s interpretation of the statute at issue, as long as the statute is ambiguous and the agency’s interpretation is reasonable. Chevron’s deference to the agency is not partisan – it makes it easier for agencies to regulate, or to choose not to regulate, benefiting the political aims of whoever is in the White House.

At its core, the Chevron debate is over separation of powers. Chevron supporters see deference to the agency as a critical protection of Executive power – the power of the President to enforce the laws. Reducing deference shifts power from the President to the Supreme Court, making it the enforcement policy maker which resolves ambiguous statutes. Some members of the Supreme Court want to eliminate agency discretion as much as possible, requiring Congress to pass detailed statutes that direct the agency’s every action. Others recognize that this is really an attack on agency enforcement power because it is impossible both politically and technically for Congress to pass sufficiently detailed legislation and amend it constantly to account for changing conditions.

Next week we will look at the recent Supreme Court case of West Virginia v. EPA and its impact on the future of Chevron. It is rooted in Brown and Williamson, which we will look at in detail. It does not overrule Chevron. Instead, it ignores Chevron.

Read Chapter 7 to the first full paragraph on p. 285.

Read this edited version of Chevron to see what the Court itself is saying about the Chevron Test:

Chevron – Edited for Adlaw Class

Video – Chapter 7 – Introduction

PowerPoint – Chapter 7 – Introduction

Video – Chapter 7 – Chevron

PowerPoint – Chapter 7 – Chevron

We are going to take a hard look at FDA v. Brown and Williamson, the FDA tobacco regulation case. This was an attempt by the FDA to regulate tobacco through regulations based on the clear language of the Food, Drug, and Cosmetics Act. This is an example of how the Court applies the Chevron test to a hard case where the statute was clear, but there was evidence that Congress assumed – but did not include in the statute – that it would not apply to tobacco. I will review the history of the FDA as an example of how Congress responds to a crisis by writing a new regulatory law. This drives many of our most important – there is a public crisis and Congress responds with legislation. Sometimes we get the FDA and food and drug safety. Sometimes we get poorly thought-through laws passed in a hurry that have bad unintended consequences.

I have prepared a detailed interlinear analysis guide to the case to help you learn how to read a case closely: FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 ( 2000) – HTML  – Word (best viewed in outline mode)

I have annotated this case to show you how to read a case closely as you would have to if you were briefing the issues on an appeal or challenging them in a new proceeding. I am not going to go over the case in this detail for class – that would take hours– and I do not expect you to memorize the detail for an exam. But you should read it closely all the way through to see how the case flows and the interplay of majority and dissent.

Video – Chapter 7 – Regulatory History of Tobacco

PowerPoint – Chapter 7 – Regulatory History of Tobacco

Video – Chapter 7 – The FDA and Tobacco

PowerPoint – Chapter 7 – The FDA and Tobacco

Read to III. ARBITRARY AND CAPRICIOUS REVIEW (Funk 308)

King v. Burwell – edited excerpt

This is an edit of one of the ACA cases. We are looking at it as an example of a unique theory that some agencies do not have the appropriate expertise to merit deference.

Video – Chapter 7 – Applying Chevron

PowerPoint – Chapter 7 – Applying Chevron

Video – Chapter 7 – Substantial Evidence Review

PowerPoint – Chapter 7 – Substantial Evidence Review

 

In an earlier note, I reviewed the Sackett decision on the waters of the US rule, which came down on 25 May. The EPA has just announced that it will a rule amending the January WOTUS rule by 1 Sept 2023. This is really a major rulemaking, not a technical amendment, because Sackett gutted the WOTUS rule. Think about The Regulators and how difficult it is to make a major rule in 3 months!

 

Breaking news!

The Supreme Court decided two cases on Friday that affect adlaw. In Biden v. Nebraska, the court struck down the student loan forgiveness program, in its first big case using the major questions doctrine from last summer, as discussed below. 303 Creative LLC v. Elenis is an LBGTQ discriminal case. Its adlaw issue is standing – the court allowed this case, despite there being only a hypothetical standing injury. I will post materials on the adlaw issues from these cases later. For an excellent editorial on this year’s court term, see Don’t believe the data: This is the most conservative Supreme Court we’ve known.

Discussion forum –Judicial deference to agency rulemaking

You are studying administrative law at the most exciting and uncertain time since the 1930s. There are cases from the 5th Circuit headed to the Court that ask the court to take away the power of agencies to adjudicate. This would take us back to the fight in the 19930s over the delegation of power to agencies. We will see how those cases come out over the next few years.

West Virginia v. EPA, bolstered by Biden v. Nebraska last week, firmly establishes the Major Questions Doctrine (MQD). The court majority describes it as a common sense look at the larger context for the statute, as with the Brown and Williamson case. The dissent, and some adlaw scholars, see it as a grab for power by the Court, shifting power from the Executive Branch to determine how to enforce statutes passed by Congress to the Court.

This is not a new question. How much courts should defer to agencies goes back to the 1940s with Skidmore and Hearst. It is easy to say that Congress should direct agencies with detailed statutes. As adlaw students, you have seen the complexity of the regulations necessary to add enough detail to the laws to make them enforceable. Congressional staff do not have the technical expertise to make fine-grained decisions about technical regulations. Statutes also lack the flexibility needed for emergencies.

OTOH, Congress has effectively been paralyzed since the 1980s. Major regulatory bills need 60 votes to survive filibuster in the Senate, and few achieve that threshold. Even the Patriot Act, the major piece of post-9/11 legislation, was delayed by more than a year. Most bills, such as the IRA just passed to address climate change, are passed as reconciliation bills, meaning they can only spend money, not give agencies broad regulatory direction. This means that the Executive Branch agencies have to address major questions such as disrupting society to limit GHGs without any statutory direction. Congress should provide guidance on these major questions, but Congress has not provided that sort of guidance on hard issues in many years. Should the court stop the agency, knowing that likely means no regulation, or should the Court allow broad agency action, telling Congress that if it does not like what the agencies are doing, it can pass a law to direct them?

I want you to write a post of at least 250 words, and a reply to a fellow student, of at least 150 words, on what you think the courts should be doing with deference to agencies for rulemaking. Should Chevron come back? Should everything become a major question? As between the elected president or the court, who should resolve ambiguous statutes? If the Court limits the power of federal agencies to set standards and do consistent regulation, are the states prepared to step in? In Sackett, the court left the regulation of almost all of Louisiana's non-coastal wetlands to the state - is the state prepared? This fight for power between the Court and the agencies is a critical issue with many angles. Write about something you care about that is affected by this fight.

Part 1

Read West Virginia v. EPA 597 U.S. ___ (2022) (Edited)

(These materials are both an introduction to the important new major questions doctrine and a review of previously covered materials.)

This is the edited USSC opinion on the Obama EPA’s authority to issue the Clean Power Plan (CPP), which required the states to develop air pollution control plans that would reduce the percentage of their state’s electrical power that is generated by burning coal. We are reading the opinion for its explanation of the major questions doctrine (MQD). This is a new test/doctrine that appeared in some of the shadow docket cases decided over the past year. (Shadow docket cases are cases that are decided without the usual briefing or oral arguments.) This is the first fully briefed and argued case decided under the MQD and the first to explain how doctrine fits into the process of judicial review of agency rulemaking.

As I have said when we have reviewed other cases, be skeptical when judges talk about things other than the law. Their main source of facts, including science and history, is the briefs and pleadings of the advocates before them. Everyone appearing before the court, with the possible exception of experts appointed by the court to advise it as provided for in the federal rules of civil procedure, has their own version of the story. In this case, the original injunction was based on the harm that would be done to the economy by the higher electricity prices that would result from forcing utilities to shift from burning coal to using natural gas or renewables. While the CPP never went into effect because of injunctions, the market caused utility companies to substitute cheap natural gas for coal in most of their electrical generating stations. (The Obama EPA assumed this would happen, which meant that the CPP would never need to be enforced.) By the time of this decision, the % of electricity generated by coal had fallen below the goal set in the CPP and electricity prices stayed stable. (With the exception of short-term dislocations related to the Ukraine war and the sanctions on Russian oil and gas sales.)

The details of the Clean Air Act provisions at issue in the case are not necessary for our purposes. Note that when Roberts gets to the MQD analysis he does not do a detailed statutory analysis. Think about why this is not necessary under the MQD. Why does the dissent criticize Roberts for not doing this analysis and what result would the defense have reached? Pay particular attention to the factors that Gorsuch proposes for when the MQD will be used and how to apply it. While Roberts’s language is specifically directed to a narrow section of the CAA, do you think that the Court will uphold any significant regulation of GHGs without new legislation authorizing the regulations?

Video – Putting the Pieces Together after West Va. v. EPA

Narrated Powerpoint – Putting the Pieces Together after West Va. v. EPA – (Slides as Word file for reading)

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Finish reading Chapter 7. Read the materials on revising rules (State Farm) very carefully.

Read – FCC v. Fox Television Stations, Inc., 556 U. S. 502 (2009) – edited for analysis

Fox is about fleeting expletives on TV – the court cites this classic discussion of the problem: George Carlin – 7 Words You Can’t Say On TV

Read – Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) – edited for analysis

Video – Chapter 7 – Arbitrary and Capricious Review

PowerPoint – Chapter 7 – Arbitrary and Capricious Review

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We are going to take a deep dive into the automobile safety regulation saga that included the State Farm case. It is a good picture of how regulations start with public concern, then evolve through time and change the nature of an industry.  It also shows how a regulatory choice can have profound unintended consequences – excluding small trucks from car safety regulations creates the minivan and ultimately the SUV industry. I have pulled together some short videos about the auto industry and safety features from the 1960s for background.

Corvair Monza Spyder Commercial with Michael Landon (1963)

This one-minute video shows the Chevrolet Corvair, a mid-engine sports sedan inspired by the Porsche and introduced in 1960, five years before Ford Mustang. We The Corvair and Ralph Nader start the car safety revolution in the US.

For those of you who are not old or fans of old cars, this video will show you the seatbelt systems talked about in State Farm.

Video – 1974 GENERAL MOTORS PROMO FILM FOR SAFETY BELTS / SEAT BELTS

The first 9 minutes of this video will show you why everyone hated the interlock system that Congress eventually banned. (I apologize that it is also an example of sexist car ads from the 1970s.)

After State Farm, car manufacturers fought airbags for years, coming up with various awkward automatic seatbelt systems.

Video – What is an automatic seatbelt?

These were unfortunately named – they are actually only automatic shoulder belts. Unless the car had an interlock that also required that the seatbelt be fastened, many drivers thought they were buckled in when the shoulder belt was engaged. Unfortunately, using a shoulder belt alone provides little protection.

Video – Door-mounted step-in seatbelt/shoulder belt

We are jumping into this video which shows the operation of an automatic seatbelt/shoulder belt. You can see what a hassle it was to use. Worse, if the door came open during a crash it became an ejection seat. The section on the owner’s manual is entertaining.

Video – Chapter 7 – The Seat Belt Saga

PowerPoint – Chapter 7 – The Seat Belt Saga

Video – Chapter 7 – Post-State Farm Standards for the Rulemaking Record

PowerPoint – Chapter 7 Post-State Farm Standards for the Rulemaking Record

Video – Chapter 7 – Litigation Issues

PowerPoint – Chapter 7 – Litigation Issues

Study Guide – Chapter 7

You should also review the text of the slides on the MQD to think about how Chevron and the MQD interact.

Part 2

Read Chapter 8

The legal framework for administrative searches and governmental collection of private information is a foundational part of our modern information-driven world. Some of the sections of ACJ do not introduce administrative searches and the regulated industries doctrine which some administrative searches are based on. Because of this, I have prepared three presentations to provide the historic and jurisprudential background necessary to understand the interplay of administrative and criminal law searches. I will not examine you over the details of these presentations, only on the key principles. The final presentation deals with the remaining issues that I think are important from Chapter 8. I have prepared a study guide on the specific information that you will be responsible for on the test. This will make it easier to extract what you need to learn from the presentations and the Chapter and not get bogged down in unnecessary detail.

Study Guide – Chapter 8 (Word) – Study Guide – Chapter 8 (PDF)

Video – Administrative Searches From the Colonial Period to 1968

PowerPoint – Administrative Searches From the Colonial Period to 1968

Video – Administrative Searches: The Area Warrant Cases

PowerPoint – Administrative Searches: The Area Warrant Cases

Video – Administrative Searches: Regulated Industries and Entry based on Licenses and Permits

PowerPoint – Administrative Searches: Regulated Industries and Entry based on Licenses and Permits

Video – Chapter 8 – Government Data Collection

PowerPoint – Chapter 8 – Government Data Collection

Part 3

It is important for you to have a basic understanding of the Freedom of Information Act, the Privacy Act, and the open meetings laws. Start by reading Chapter 9 to Exemption 2, p. 376. This is the basic structure of FOIA, plus the discussion of the 1st Exception.

Pages 376 t0 III. GOVERNMENT IN THE SUNSHINE ACT, p. 399 covers the next 8 exemptions to the Act. You do not need to memorize these. Skim these pages to get a sense of what they cover, but do not worry about learning them for the exam.

Then read III. GOVERNMENT IN THE SUNSHINE ACT and V. THE PRIVACY ACT. (We are skipping IV. FEDERAL ADVISORY COMMITTEE ACT.)

Video – Chapter 9 – FOIA – Part 1

PowerPoint – Chapter 9 – FOIA – Part 1

Video – Chapter 9 – FOIA – Part 2, Privacy Act, and Open Meetings (updated with coverage of open meetings acts)

PowerPoint – Chapter 9 – FOIA – Part 2, Privacy Act, and Open Meetings (updated with coverage of open meetings acts)

Study Guide – Chapter 9

FOIA Resources

United States Department of Justice Guide to the Freedom of Information Act

 

Watch the video, then read the case excerpt.

Video – 2023 Administrative Law Supreme Court Update

Powerpoint – 2023 Administrative Law Supreme Court Update

Edited case – Biden v. Nebraska

No comments.

Last Week!

These are the last assignments for the course. The exam is on Friday, the 21st. I will post additional study materials and the final forum assignment later in the week. In general, use the PowerPoint slides as a guide to the key issues when studying.

Suing Agencies for Tort (Money) Damages to Contest Governmental Policy

The vast majority of tort cases against the federal government and its employees result from ordinary personal injuries and property torts. These include automobile accidents, medical malpractice cases at government hospitals, and the rest of the routine torts that arise from the day-to-day actions of well over a million government employees. For an excellent guide to these torts, see: CRS – The Federal Tort Claims Act (FTCA): A Legal Overview (2019 November) These are important for compensating individuals who are injured by government employees, but these do not raise administrative law policy questions.

We are going to review the basics of suing government officials and then focus on the cases that question government policy through mass tort litigation. These raise difficult policy questions – can the government intentionally injure people while carrying out government policy and escape tort liability? Does the government have a duty to protect people from risk, either human or natural?

These questions have been most clearly raised through flood law. What is the government’s duty to protect against flooding? While climate change is exacerbating the risk of flooding, Louisiana has always been subject to catastrophic flooding from hurricanes and tropical depression-driven rain storms. For those of you who grew up in Louisiana, Hurricane Katrina was likely a major event in your lives. More recently, the Baton Rouge Flood of 2016, Hurricane Ide, and the hurricanes that pummeled Lake Charles have had a major impact on the people of Louisiana. Louisiana is not alone – Hurricane Harvey flooded Houston and Florida has been hard hit by recent hurricanes.

We are going to take a deep dive into the law of suing the federal government for flood damage. We are also going to look at the factual basis of these claims. The mythology is that the Corps of Engineers failed to protect New Orleans, but that the government won on a technicality. In this view, now that the levees are fixed, New Orleans is safe. Based on the property values in New Orleans, this is certainly what the real estate market believes. Is this view correct or is New Orleans a 200-year-old land use planning disaster that has been periodically flooded throughout its history and is just waiting for the next flood? We will look at the Hurricane Katrina Levee Breach cases and think about how they were litigated and whether the courts reached the proper result.

Part 1 – The Federal Tort Claims Act (FTCA)

Introduction to Suing the Government for Tort Damages

Federal Tort Claims Act (FTCA) Statute (PDF)

Scan the statute.

Tort Claims Against the Federal Government – The FTCA and Bivens

This is an explanation of the FTCA and Bivens that I have prepared for use in class

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) – edited

Read this edited version of Bivens. DOJ is arguing that the plaintiff should be restricted to state law claims against the officers, but that those claims would be removed to federal court. They would then be dismissed because the version of the FTCA then in effect did not have the provision that allows certain intentional torts against law enforcement officers. That was added after this to reduce the volume of Bivens litigation.

Video – Suing the Federal Government: Sovereign Immunity, FTCA History, and Bivens

PowerPoint – Suing the Federal Government: Sovereign Immunity, FTCA History, and Bivens

How to File an FTCA Claim

Form 95 – CLAIM FOR DAMAGE, INJURY, OR DEATH

This is the form for filing an FTCA claim. Review it so you understand the required information.

Video – Filing an FTCA Claim

Narrated PowerPoint – Filing an FTCA Claim

The Discretionary Function Exception (DFE)

The DFE makes proving a case under the FTCA fundamentally different from a private tort case. The DFE is intended to protect government decision-making from collateral attacks through tort litigation. It is the second malpractice trap for lawyers in the FTCA. As you will see, it goes against conventional torts jurisprudence, sheltering the government from liability for actions that would result in judgments and even punitive damages against private parties.

Video – Texas Department of Public Safety film of the aftermath of the Texas City Disaster

WWW sites – The Texas City Disaster. April 16, 1947 – Galveston News

These are both background for the Dalehite case in the reader. It is important to have a sense of the stakes in these cases.

Federal Tort Claims Act Reader

These are edited versions of the key cases setting out the judicial construction of the discretionary function exception in the FTCA.

Video – Federal Tort Claims Act – DFE

Narrated Powerpoints – Federal Tort Claims Act – DFE

Resources for the FTCA

CRS – The Federal Tort Claims Act (FTCA): A Legal Overview (2019 November)

A more detailed discussion of the FTCA for reference.

Pfander, James E. and Reinert, Alexander A. and Schwartz, Joanna C., The Myth of Personal Liability: Who Pays When Bivens Claims Succeed (February 27, 2019). 72 Stanford Law Review 561 (2020)

Court of Federal Claims WWW site

History of the United States Court of Federal Claims

For cops who kill, special Supreme Court protection

A good analysis of how the qualified immunity defense has evolved to an almost insurmountable barrier to prosecution and tort claims in police abuse cases.

Justice Thomas’s dissent in Iqbal

Part 2

The Louisiana Tort Claims Act

We are going to return to Louisiana administrative law for a look at the Louisiana Tort Claims Act. This is another area where Louisiana is unique – it abolished sovereign immunity in the 1974 Constitution.

Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003)

CDC – Vibrio and Oysters

FTCC DFE compared to LATC DFE

This is the lead LA case on the LA-TCA. Points to cover are how the LA-TCA is interpreted compared to the FTCA, how the court resolved the discretionary act question, and whether this case really reinterprets the Fowler case it discusses. Be sure to read the concurrences and dissents. Note that Louisiana abolished sovereign immunity in the 1974 constitution. This makes it much easier to sue, but also note the LA appropriations clause language is going to make it impossible to collect a judgment from a state court proceeding such as a tort claims lawsuit. If you win against the state, you can only collect through a private bill in the Louisiana Legislature. For example, plaintiffs won a substantial verdict against the state because of flooding in 1983 that was caused by the alleged negligent design of Highway I-12, allowing it to act as a dam. (This would have failed against the feds because of the DFE, but this was a proprietary action in Louisiana.) It took 39 years for the legislation to fund part of the jury award: 39 years later, lawmakers endorse $95 million settlement for Tangipahoa Parish flood victims 

Video – The Louisiana Tort Claims Act: Basics

Narrated Powerpoints – The Louisiana Tort Claims Act: Basics

Video – The Louisiana Tort Claims Act in Action

Narrated PowerPoints – LA Tort Claims Act in Action

Part 3 – Suing the Government for Flood Damage

The Flood Control Act of 1928 and the FTCA

Almost all old US cities are built on a river or on the coast, usually at the mouth of a river on the coast. Colonial America depended on water for the transportation of most goods domestically and on coastal ports for trade with Europe. Even today, with the interstate highways, railroads, and air freight, the bulk of international cargo still travels by ship, and barges still carry cargo on the Mississippi River and tributaries.

East and Gulf Coast cities are subject to hurricane risk and all river cities are subject to flood risk. In other areas, such as Houston, poor land-use planning has put a significant part of the population at flood risk. Most of the major flood control projects have been built by the Army Corps of Engineers, a federal agency. Whenever there is a major flood, lawyers want to sue the Corps because the existing flood control project did not protect everyone or because the Corps had not yet built a local flood control project.

The Flood Control Act of 1928 (FCA) was passed after the Great Flood of 1927, which catastrophically flooded much of the Mississippi Delta, It expanded the efforts of the Army Corps of Engineers to control flooding on the Mississippi, which had begun after the Civil War. Flood control poses difficult policy problems. It is never perfect so people who think they are protected will want to sue the government when they flood. The FCA includes a broad immunity provision, Section 702, blocking all lawsuits based on flooding.

Flooding is a major policy problem today and it is rapidly worsening with climate change. The Hurricane Katrina Levee Breach litigation is likely the largest tort case filed against the United States.  We are going to take a hard look at flood litigation against the federal government. For those from Louisiana, 15 years later Hurricane Katrina is still affecting Louisiana and western Louisiana has been devastated by storms much more recently. It is only a matter of time before New Orleans is again flooded. Houston has had three 500-year floods in a few years, with Hurricane Harvey putting a large part of the city underwater.

We are going to start with the National Mfg. case. Once the FTCA was passed, the courts had to decide whether the FTCA overrode FCA immunity. National Mfg. is the key precedent case and has a good history of flood control issues.

National Mfg. Co. v. United States. Great Western Paint Mfg. Corp., 210 F.2d 263 (8th Cir. 1954) – edited

The next important event is Hurricane Betsy which hit New Orleans in 1965. It flooded the city as completely as Katrina but killed relatively few people. This was partially because the city was better prepared and many people evacuated and partially because the levees built after Betsy gave people a false sense of security and development was extended in low-lying high-risk areas. Betsy spawned the Graci case, which we will read, and helped push Congress into passing the National Flood Insurance Program, which we look at in Climate Change Law.

Remembering Betsy: WVUE-TV 09/1990 

This is a 25 year retrospective (1990) on Hurricane Betsy by a New Orleans news station. – pay special attention to the levee comments at about 12:30 and the ending comments at 27. (My recommendation is to watch this at 1.5 speed – it is slow-paced and you will not miss anything.)

Flood Control Act of 1928 – Reader

The next question after the courts found that the Flood Control Act of 1928 immunity survived the passage of the Federal Tort Claims Act was to determine if there any cases where the plaintiffs would be able to avoid FCA immunity and make FTCA claims. One of the cases in the reader was filed after Hurricane Betsy flooded New Orleans in 1965. It alleges that the MRGO increased the flooding in New Orleans. The case in the reader – Graci II – explains the 5th Circuit’s approach to the FCA, which ties it to flood control structures. In the last case, Central Green, the United States Supreme Court finally sorts out the meaning of FCA immunity. When we look at the Katrina materials, we will see whether the 5th Circuit follows the Central Green ruling.

Video – Flood Law: The Flood Control Act of 1928

Narrated PowerPoints – Flood Law: The Flood Control Act of 1928

After the 5th Circuit upheld the ruling that the FCA did not apply to the MRGO litigation, it remanded Graci back to the district court to try the FTCA claim:

Graci v. United States, 435 F. Supp. 189 (1977) (Graci III) – edited

This is the district court ruling after the Hurricane Betsy case was remanded back by the 5th Circuit in Graci II. Notice that the court does not discuss the DFE – it did not find any evidence of negligence in its application of Louisiana law so there was no need to consider the DFE. When you read the Katrina case, notice that the plaintiffs’ lawyers argued the case as if were against a private party. They effectively proved the government’s case for it by inadvertently putting on a prima facie case for a DFE defense. Could they have been misled by Gracie III which looks like an ordinary private tort case?

Video – Suing the Government after Hurricane Betsy

Narrated PowerPoints – Suing the Government after Hurricane Betsy

In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644 (E.D.La. Nov 18, 2009) (appendix)

This is a long and complicated case. I did not edit it because I want you to scan it to get a feel for the factfinding in the case. Use this guide to focus your reading on the key parts so you do not get lost in the weeds: Reading Guide – Katrina Levee Breach – District Court

Video – The Hurricane Katrina Levee Breach Litigation

(Correction! – The narrative says the intro picture of a destroyed highway is I-10, but it is actually Highway 90, looking from Biloxi to Waveland, MS. The I-10 bridge was torn up going from New Orleans east to Slidell.)

Narrated PowerPoints – The Hurricane Katrina Levee Breach Litigation

The Takings Claims

Having lost on the tort claims. the lawyers for the Katrina Levee Breach plaintiffs filed a parallel action on the same facts, but this time alleging that the failure to protect New Orleans amounted to a temporary taking of the plaintiffs’ property. This is an increasingly common end run on sovereign immunity – if the plaintiffs can convince the court that the damages are from a taking, the FTCA does not apply because the Constitution waived sovereign immunity for takings in the 5th Amendment. By taking the case outside of the FTCA, the plaintiffs escape the DFE and Section 702. More generally, if the Court accepts the transformation of tort claims into takings claims, it creates a mechanism for plaintiffs to challenge agency policy decisions outside of the limits of the APA and the FTCA. This may make the government less willing to embark on major flood control projects for fear of taking on liability when they fail.

St. Bernard Par. Gov’t v. United States, 887 F.3d 1354 (Fed. Cir. 2018)

We are going to read this case closely, rather than going through the cases leading up to it. I have highlighted the key points in the opinion.

Video – The Katrina Levee Breach Takings Claims

PowerPoint – The Katrina Levee Breach Takings Claims (not narrated)

Resource Documents

The Hurricane Katrina Litigation Against the Corps of Engineers: Is Denial of Geology and Climate Change the Way to Save New Orleans?

My law review analyzing the cases. This is not required reading.

Discussion Forum - Has Administrative Law Changed Your Views of Government?

I want you to write at least one post of at least 250 words and a reply of at least 150 words on how studying administrative law has affected your view of the law or government. Surprised? Shocked? Confirmed your worst suspicions? Has it been worth your time? There is no right answer or view, just state your position clearly. I have asked this question in previous years and have been impressed by the insightful comments.

 

Breaking news! DOJ won’t consider Trump immune in E. Jean Carroll defamation lawsuit

Is the President an Employee of the Government?

This case arose when President Trump, during his presidency, denied rape allegations and made potentially defamatory remarks about Ms. Carroll, the accuser. It was too late to sue over the rape, so Ms. Carroll, a journalist, sued for defamation. Her claim depends on staying outside of the FTCA, which excludes defamation. Thus she must either show that President Trump was outside of his course and scope as president or that he is not an employee of the government and thus not covered by the FTCA and the Westfall Act.

While the answer seems obvious, a federal district court ruled that the definition of employee in the Westfall Act excludes the President. To some extent this was based on what we know from adlaw – the President’s office is not an agency and thus the President does not work for an agency. The district, reading the Westfall Act narrowly, found that the President was not on the list of specific examples of government employees and thus refused the motion by the Attorney General to substitute the government as plaintiff. (Federal court order denying the motion to substitute the United States as the defendant)

The Second Circuit panel found that the President is an employee, but found that did not end the inquiry. The government can only be substituted for the defendant if the defendant is within the course and scope of employment. That is a tort law standard and is thus determined by the law of the state where the tort occurred. In this case, the President’s statements were made in Washington DC, and thus it depended on DC tort law. The Second Circuit certified a question to the DC Court of Appeals on the standard for course and scope of employment. The DC Court answered that it is a case-by-case factual inquiry. Based on this answer, the Second Circuit was unable to resolve the course and scope question. It remanded the case to the DC court to proceed with the factual inquiry. If the DC court finds that the defamatory comments were not in the course and scope of the President’s job, the case will proceed to trial. (Remand order – E. Jean Carroll v. Donald J. Trump)

Subsequent to this lawsuit, NY passed a law creating a one-year window to file old sexual assault and rape cases that were outside the statute of limitations. Carroll filed a sexual assault case against President Trump. She won before the jury: Jury finds Donald Trump sexually abused E. Jean Carroll in civil case, awards her $5 million

The next legal step will be the DC Court’s determination of whether defamatory comments are within the course and scope of the job of the President as part of the expected political give and take. This will likely be decided early fall. If the actions are found to be outside the course and scope of employment, it will allow the first tort claims against a President for actions taken in office. (The claims against President Clinton that were litigated during this time in office arose before he was elected.)

Resources

These are optional but are available if you want to look deeper into the issues.

Video – Is the President an Employee of the Government?

Video analyzing the court’s arguments and the DOJ brief to the 2nd Circuit on whether the President is an employee.

Annotated – Brief of the DOJ on appeal to the 2nd Circuit contesting the order denying the motion to substitute

Biden Justice Department defends Trump in suit over rape denial

Carroll v. Trump – state defamation case

Plaintiff Carroll’s blog on the case (Carroll is a journalist)