Agencies
Department of Agriculture
Administrative Agencies
• Fourth branch of government
– Non-delegation doctrine
• Congress must provide an “intelligible principle” to guide
the exercise of agency discretion
– Agency Action
• Rulemaking
• Adjudication
– Administrative agencies are pervasive in natural
resources law
• Are there any unifying principles?
• How did they evolve?
U.S. Forest Service
• Division of Forestry at DOI gave way to
the USFS in USDA
• 155 forests covering 191.6 million acres
• Headed by a Chief
– Regions headed by Regional Foresters
– Forests headed by Superintendents
– Districts (within a Forest) headed by District
Rangers
Forest Service Regions
National Forest System
• What are the purposes for which forests were
established?
– 1897 Organic Act
• Forest reserves established to “ensur[e] favorable conditions for
water flows…” and “to furnish a continuous supply of timber….”
• MUSYA of 1960
– Multiple use and sustained yield
– Supplemental purposes
• RPA of 1975
– Forest system-wide planning
• NFMA of 1976
– Land use planning (LRMPs)
Bureau of Land Management
History of the BLM
• The General Land Office
– Established in 1812 in Treasury Department to
oversee disposition of public lands
• U.S. Grazing Service
– Established in 1934 under Taylor Grazing Act
• In 1946, GLO and Grazing Service were merged to form
the BLM in the Department of the Interior
• In 1976, Congress passed the Federal Land Policy and
Management Act (FLPMA), sometimes called the BLM
Organic Act
– First time Congress stated a general policy to retain public lands
in federal ownership (Provision for sale of lands only after
appropriate planning.)
FLPMA
• Provides for –
– Preparation and maintenance of an inventory of public land
resources
– Land use planning on BLM managed lands (RMPs)
• Multiple use/sustained yield principles applied
– “Withdrawals” of public land
• What’s a withdrawal?
– Limited sale and acquisition authority
– Exchange authority (equal value)
– Right of way authority (FS and BLM)
– Wilderness studies for BLM lands
• Obligates Secretary to prevent “unnecessary and undue degradation”
of the public lands
• Establishes mining claim filing requirements
• Makes provision for 10-year grazing permits and allotment
management plans (AMPs) (FS and BLM)
Comparing USFS and BLM
• FS cultivates its reputation as an apolitical
agency that makes decisions based on science
– Gifford Pinchot’s legacy
– Agency structure helps to promote this approach
– Manages less land than the BLM but has about 6 times
the number of employees as the BLM
• BLM has historically been more prone to
political influence
– Example of agency capture (“Bureau of Livestock and
Mining”)
– Struggles to rid itself of poor public image
• National Landscape Conservation System
• FS has about 6 times as many employees as the BLM but the
BLM manages about 75 million acres more than FS
National Wildlife Refuge System (DOI)
• Its mission is to administer refuges “for the
conservation, management, and where
appropriate, restoration of the fish, wildlife,
and plant resources and their habitats … for the
benefit of present and future generations….”
• Nearly 500 units covering about 90 million acres
(mostly in Alaska)
• Managed by US Fish and Wildlife Service (FWS)
• National Wildlife Refuge System Administration
Act of 1966
National Park System (DOI)
• Park Service Organic Act of 1916
– Establishes the National Park Service (NPS), which
manages parks, monuments, etc. “to conserve the
scenery and natural and historic objects and the
wildlife therein, and to provide for the enjoyment
of the same in such manner and by such means as
will leave them unimpaired for future
generations.” 16 U.S.C. §1.
– 368 units (parks, monuments, historic parks,
battle fields, etc.) covering about 80 million acres
of land (about half of this in Alaska)
Other Systems
• National Wilderness Preservation System
(104 million acres in 44 states)
– Wilderness is designated by Congress from the
many different types of public lands
• Wild and Scenic Rivers System
– 150 rivers, 10,734 miles in 34 states
• National Trails System
– 19 trails covering 35,000 miles
Other Agencies
• NOAA Fisheries
– Dep’t of Commerce
• Bureau of Indian Affairs
(BIA)
– Department of the Interior
• Army Corps of Engineers
– Department of Defense
• USGS
– Department of the Interior
• Environmental Protection
Agency (EPA)
• Council on Environmental
Quality (CEQ)
– Office of the President
• Bureau of Reclamation
– Department of the Interior
• Minerals Management
Service (MMS)
– Department of the Interior
• Office of Surface Mining
(OSM)
– Department of the Interior
Resolving Interagency
Disputes
• Consider the structure of the Executive
Branch
• President (or Justice Department can
generally resolve disputes among executive
branch agencies
– What happens when dispute arises between
independent regulatory agencies, like the Nuclear
Regulatory Commission and an Executive branch
agency, such as the Fish and Wildlife Service?
Problems of Agency Capture
and the Public Interest
• Why does agency capture occur?
• How does an agency determine the
public interest?
– Is it a majority vote as Professor Huffman
suggests?
– Is it in the public interest to allow
snowmobiles in Yellowstone National Park?
– To allow ski areas in a pristine roadless
area of a national forest?
Improving Agency Decisionmaking
• Administrative Procedure Act (5 U.S.C. § 551 et seq.)
– Basic law governing agency decisionmaking
– Divides agency action into rules and orders
• Rulemaking is the process for developing rules
• Adjudication is the process for creating orders
– Agencies may choose whether to act by rule or by
order
• For example, an agency may promulgate a rule requiring
certain reclamation work at a mine site, or it may issue a
permit and insist on such work, even in the absence of a
specific rule
Rulemaking
• Formal rulemaking is rare and does not generally apply
to natural resource decisions
– Requires trial type hearing
• Informal rulemaking (notice and comment rulemaking)
is more common, but it is much more cumbersome
than the word “informal” might suggest
• Non-legislative rules that follow neither procedure are
becoming more common as agency seek ways to avoid
cumbersome procedures. These may include, for
example –
– Legal opinions
– Instruction memoranda
– Directives
– Agency manuals
The Complexities of Rulemaking
• In addition to the APA, agencies must comply with –
– The National Environmental Policy Act (NEPA)
• Requires an EIS for major federal actions; an EA for lesser
actions
– Regulatory Flexibility Act
• Requires a RFA for rules with significant impacts on small
businesses
– Paperwork Reduction Act
• Requires agencies to consider and reduce impact of new
paperwork requirements
– Unfunded Mandates Reform Act
• Requires consideration of impact on local and state
governments
– Exec. Order 12991
• Requires cost-benefit analysis
• NOTE: 5 U.S.C. § 551(5) defines “rulemaking” to include the
process for “repealing a rule”
Adjudication
• Formal and informal adjudications
• Formal requires a trial-type hearing before an
“administrative law judge”
• The process for informal hearings is not directly
addressed in the APA, but the APA generally allows a
person –
– to appear before an agency in a proceeding
– to receive a decision within a reasonable time, and
– if a request made to the agency is denied, to receive a brief
statement of the grounds for denial. 5 U.S.C. §555.
– These informal procedures are often supplemented
by an agency’s own procedures
Judicial Review of Agency Action, 5 U.S.C. § 706
(1) compel agency action unlawfully withheld or
unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be –
– (A) arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law;
– (B) contrary to constitutional right, power privilege or
immunity;
– (C) in excess of statutory jurisdiction…
– (D) without observance of procedure required by
law….
– (E) unsupported by substantial evidence [in formal
proceedings]
– (F) unwarranted by the facts to the extent that such
facts are subject to trial de novo
Arbitrary and Capricious Standard
•
•
While the standard is deferential, it requires
agencies to take a “hard look” CTOP v. Volpe
“Normally, an agency rule would be arbitrary and
capricious if –
1. the agency has relied on factors which Congress has not
intended it to consider,
2. entirely failed to consider an important aspect of the
problem,
3. offered an explanation for its decision that runs counter to
the evidence before the agency, or
4. is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.”
•
Motor Vehicles Mfrs Ass’n v. State Farm Ins. Co., 463 U.S. 29,
43-44 (1983)
Agency Interpretations of the
Statute it Administers
•
Chevron test:
–
For agency interpretations that occur in
rulemakings and formal adjudications
1. Is the statute clear? If so, apply the statute.
2. If not, defer to any “permissible,” i.e., reasonable,
construction by the agency
•
Mead/Skidmore test:
–
–
For agency interpretations that occur as a result
of less formal processes
Lesser deferential standard; court gives the
agency’s decision the respect it is due
NSO v. Hodel
• What was the agency action?
• What is the standard of review? Why?
• Why did the court rule against the agency?
– Consider the deference that courts give agencies as
noted by Vic Sher
• What was the remedy?
The Role of NGOs
• http://ga1.org/campaign/stone_tws
• http://www.nma.org/policy/regulatory/new_source_revi
ew.asp
• http://www.suwa.org/page.php?page_name=Camp_2477_
Home
• http://www.wyomingoutdoorcouncil.org/alerts/gd032603
.html
• http://www.greenscissors.org/news/gs2003pr.html
• Note that groups may act as advocates, as think tanks and
experts, and as market players
Lobbying for Legislative and
Administrative Action
• Efforts of NGOs may counteract impact of
public choice theory
– But does it present its own set of public choice
problems?
– Who speaks for the public? Who defines the
public interest?
• Is this just another example of public choice theory
where two interest groups battle for favor, and the
public is still shut out?
– Consider that most NGOs do not have economic
self interests
• What about the National Mining Association?
• How do groups overcome income disparity in available
resources?
Access to Courts
• Citizens suits
– Citizens act as private attorneys general
– Provided by statute
• Generally allow suits against violators or agency
where agency fails to carry out non-discretionary
duty
• Citizen plaintiffs may recover legal costs if they
win (one-way fee-shifting)
– Common in environmental statutes;
uncommon in resource statutes
• But ESA has a citizen suit provision
Access to Courts
• Standing to sue
– Does a citizen suit provision afford universal standing
to citizens who raise issues allowed under the law?
– Any constitutional problems with universal standing
• Professor Squillace’s standing test
– Standing requires a personal, redressable, injury in
fact, economic or otherwise, that can be traced to
the defendant’s conduct
– And if the lawsuit relies on the APA for a waiver of
sovereign immunity, the plaintiffs must also show
that they are within the zone of interests sought to
be protected by the statute
Organizational Standing
• Hunt v. Washington Apple Advertisers test
– One or more of members must have standing in
their own right
– Relief requested must be germane to the
organization’s purpose
– Neither the claim asserted nor the relief
requested can require participation of individual
members
• For example, you can’t seek damages for injury to a
member’s property
Lujan v. Defenders of Wildlife
•
Who is suing whom and for what?
–
•
Extraterritorial application of ESA §7(a)(2)
What is the “irreducible constitutional minimum” for standing?
1. Injury in fact –
• concrete and particularized and actual or imminent
• the plaintiff must be among the injured
2. Redressability
3. Traceability
•
NOTE: Constitution requires a “case” or “controversy.”
–
–
–
Is Scalia’s interpretation faithful to the language of the constitution?
Can you have a “case or controversy” the party seeking review is not
personally injured?
Is there a “case or controversy” in the Defenders of Wildlife case?
Lujan (continued)
• Party invoking jurisdiction has the burden of establishing
standing
• Burden varies at different stages
– At pleading stage — general allegations, which if true,
support standing
• Court assumes that general allegations embrace specific
facts
– At summary judgment stage — must set forth, by affidavit
or other evidence, specific facts
• Court assumes that facts are true
– At hearing stage — facts must be supported by evidence
adduced at trial
• Scalia says that burden is “substantially more difficult” for
person not the subject of the government regulation
– Is this true? Is it fair?
Lujan (continued)
• According to the plurality, what was wrong
with the Kelly and Skilbred affidavits?
• Why does the Court reject the ecosystem
nexus, animal nexus, and vocational nexus
theories?
• Does the court command a majority for its
views on these issues?
– What do the concurring judges say?
Lujan (continued)
• Why are “procedural” injuries “special,” according
to Justice Scalia?
• How can redressability and immediacy be
“irreducible” constitutional requirements if they
don’t apply to procedural injuries?
• Consider notes 7 and 8
– If the government gives the public a “right to
comment,” or a right to government documents (FOIA)
by statute, does an individual denied those rights
automatically have standing? (Statutory injury?)
Federal Election Commission v. Akins
• Plaintiffs allegedly denied information required by Federal Election
Campaign Act
– Plaintiffs alleged that the FEC failed to require an organization to
register as a “political committee”
• The FEC claimed that plaintiffs lacked standing because, among
other things, they held only a “generalized grievance” shared by all
voters
• Breyer, writing for six members of the Court, found the injury
sufficiently concrete and specific to support standing, even if it was
widely shared
– It was not abstract or indefinite
• Scalia dissent argued that standing should be denied because the
plaintiffs’ injury could not be differentiated from that of other
members of the public.
• Has Scalia lost his plurality from Lujan?
Procedural Injury Problem
• Environmental activism at Oberlin College
– Grade based upon participation in an “agency action”
– You choose to write comments on a draft
environmental impact statement on snowmobile use in
Yellowstone National Park
– You have never been to Yellowstone National Park and
you have no present intention to go there, but you feel
passionately about this issue
• Suppose government refuses to provide you with
documents needed to complete this assignment
• Do you have standing standing to sue?
Problem
• The whooping crane is an endangered species
that uses the Platte River in Nebraska as stopping
point during migration season
• Suppose that you live in Texas where some of the
cranes spend the winter and that you enjoy
watching these birds in at your local wildlife
refuge
• After Lujan, do you have standing to challenge a
decision adversely affecting the crane’s Platte
River habitat even if you have never visited (and
have no intention of visiting) Nebraska?
Procedural Injury Problem
• Jane Doe has decided to write a paper for an
environmental law class at the New York University School
of Law on the environmental problems associated with the
construction of a dam on the South Platte River in
Colorado.
• Jane has never been to Colorado and has no present
intention of visiting Colorado. Nonetheless she has filed a
FOIA request for documents relating to the proposal to
build the dam.
• If the government refuses to provide her with the
documents does Jane have standing to sue?
• If the government refuses to respond to her comments as
required by NEPA does she have standing to sue?
National Environmental Policy Act (NEPA)
• Requires federal agencies to prepare an EIS on “major
federal actions that significantly affect the quality of
the human environment.”
• Promotes public participation in agency decisionmaking
• Federal actions are often necessary to authorize
natural resource development, even where such
development occurs on private lands
• NEPA is “essentially procedural,” but it is the vehicle
that often provides the public with the information
needed to raise substantive concerns
NEPA Grows Teeth
• Calvert Cliff Coordinating Committee:
– Made clear that it was not enough for an agency to
prepare an EIS and have it accompany the
application
• The agency must actually consider the EIS in making a
decision
– The Court also held that it was not enough to
indicate that the applicant would comply with
other environmental laws, such as Clean Water Act
• Must still consider the adverse impacts of the pollution
even if it might have been lawful
National Environmental Policy Act
(NEPA)
• Federal agencies prepare an EIS on “major federal
actions that significantly affect the quality of the
human environment.”
• Public opportunity to comment on Draft EIS
• NEPA is “essentially procedural”
• NEPA makes environmental protection part of the
mandate of every federal agency
• NEPA requires agencies to consider environmental
impacts when making a decision
NEPA Compliance Process
• Is it a major federal action that significantly affects the
quality of the human environment?
Yes -- No -- Maybe
– If YES, prepare an EIS
– Can only answer NO if the action has been
“categorically excluded”
– If MAYBE, prepare an environmental assessment or EA
• Helps agency decide whether to prepare an EIS
• Allows the agency to analyze possible alternatives
to the proposal even where an EIS is not needed
– This is required by Section 102(2)(E) of NEPA
Categorical Exclusions
• Forest Service changed previous rule
categorically excluding 100,000 board feet of
timber to 250,000 – 1,000,000 board feet of
timer (the latter for salvage sales)
• Court found inadequate record to support
the decision
– Agency offered an explanation that ran counter
to the evidence
– Was so implausible could not be ascribed to
agency expertise
Timing of NEPA Compliance
• NEPA compliance must be carried out as
soon as possible after a proposal has
crystallized
• Agency may not make irreversible or
irretrievable commitment of resources
in support of a particular action until
they have complied with NEPA
– Conner v. Burford
Tiering
• NEPA analysis should analyze impacts at
different scales
• NEPA documents prepared on a large scale
(e.g., land use plan), can be tiered to
documents prepared at a smaller scale
(e.g., road, mine, grazing permit, timber
sale, hiking trail)
• Effective tiering can allow agency to avoid
EIS preparation on smaller scale projects
Scope of an Action
40 CFR §1508.25 Scope
• “Scope consists of the range of actions,
alternatives, and impacts to be considered in
an environmental impact statement. * * *”
– Actions include “connected,” “cumulative,” and
similar actions (Thomas v. Peterson)
– Alternatives include “no action,” other
“reasonable actions,” and “mitigation
measures for all alternatives”
– Impacts may be direct, indirect, or cumulative.
What makes an action?
• Defenders of Wildlife v. Andrus
– Wolf kill decision
• FLPMA authorized but did not require federal
action to stop or control wolf hunt on public
lands
• Is the failure to act “action”?
• Southern Utah Wilderness Alliance v. Norton,
___ U.S. ___ (2004)
Cumulative Impacts
• "Cumulative impact" is the impact on
the environment which results from
the incremental impact of the action
when added to other past, present,
and reasonably foreseeable future
actions regardless of what agency
(Federal or non-Federal) or person
undertakes such other actions.… 40
CFR §1508.7
The Human Environment
• Includes direct sensory impacts
• But not fear that results from risks
associated with federal actions
– proximate cause analysis
– Metro Edison v. PANE
The Small Federal Handle Problem
• Suppose the federal action is limited to
a small part of a larger project
– E.g., Funding for small segment of a large
road projects
– What is the “scope” of the project for
NEPA purposes?
Problem Exercise
Winter Park Resort
• Section 404 permit for 20 acres of wetlands
located at the site of a proposed golf course
is the only federal action associated with a
multi-million dollar year round resort
complex in the Rocky Mountains.
• Is the federal handle large enough to justify
federal EIS?
• Are the Corps’ rules consistent with the CEQ
rules?
The Elements of an EIS
• Recommended format 40 CFR 1502.10
• Key components
1.
2.
3.
4.
5.
Cover sheet
Executive summary
Table of contents
Purpose and need for the proposed action
Alternatives including the proposed action (the
“heart of the EIS”)
6. Description of the affected environment(s)
7. Description of the environmental consequences
8. List of preparers (ID team)
9. List of agencies; persons to whom copies sent
10.Index
11.Appendices
Alternatives Analysis
• § 40 CFR 1502.14 Alternatives including the proposed action.
•
This section is the heart of the environmental impact
statement. * * * [I]t should present the environmental impacts of
the proposal and the alternatives in comparative form, thus sharply
defining the issues and providing a clear basis for choice among
options by the decisionmaker and the public. [A]gencies shall:
•
(a) Rigorously explore and objectively evaluate all reasonable
alternatives, and for alternatives which were eliminated from
detailed study, briefly discuss the reasons for their having been
eliminated.
•
(b) Devote substantial treatment to each alternative …
•
(c) Include reasonable alternatives not within the jurisdiction
of the lead agency.
•
(d) Include the alternative of no action.
•
(e) Identify the agency's preferred alternative or alternatives,
if one or more exists…
•
(f) Include appropriate mitigation measures not already
included in the proposed action or alternatives.
Citizens Against Burlington v. Busey
• What was the proposed action?
• What is the “no action” alternative as determined by
the FAA?
– Why does Judge Buckley find this decision unsupportable?
• Did the FAA’s EIS serve NEPA purposes?
– Did it “present the environmental impacts of the proposal and
alternatives in comparative form, thus sharply defining the
issues and providing a clear basis for choice…”
• What did the 7th Circuit hold in Van Abbema and why
does the D.C. Circuit reject their holding?
• Why does Judge Buckley dissent?
Scientific Uncertainty and NEPA
• 40 CFR 1502.24 requires agencies to “insure the
professional integrity including scientific integrity of the
discussions and analyses in EISs.”
• Where there is “incomplete or unavailable information” to
evaluate “reasonably foreseeable significant adverse
effects” –
– “The agency shall always make clear the information is lacking”
– If the incomplete information is essential to a reasoned choice and
the costs to obtain it are not exorbitant, the agency must get the
information
– If the costs are exorbitant, the agency must explain the relevance
of the information, summarize the scientific evidence, and
evaluate the reasonably foreseeable significant impacts based upon
generally accepted theoretical approaches or research methods
– “Reasonably foreseeable” includes impacts with catastrophic
consequences, even if the probability of occurrence is low,
• But the analysis must still be based upon credible scientific
evidence and not pure conjecture
Supplemental EISs
• 40 CFR 1502.9(c)(1): Agencies must
prepare supplemental EISs if –
– Agency makes substantial changes to
proposed action relevant to environmental
concerns
– There are significant new circumstances
or information relevant to environmental
concerns
Problem: Friends of the Bow v. Thompson
• Banner timber sale approved by FS; highest timber volume
alternative chosen
– Three “key” reasons given
• Decision would do the most to help timber dependent
communities
• Decision was consistent with the forest plan
• Chosen alternative had the highest benefit cost ratio
(based on 5 million board feet)
– After decision approved, the FS cruised the sale and found
only 3 million board feet
• A supplemental economic analysis prepared by the FS
showed that the chosen alternative no longer had the
highest benefit cost ratio
• Would change a sale that would make money to one that
would lose money
– Was a supplemental EIS needed?
Natural Resources Planning
• Why planning?
– What are the pros and cons of planning?
• NEPA requires a kind of planning
• Land use plans are commonplace at
various levels of government and scale
• Public Land planning
– Forest Service
• MUSYA: NFMA
• multiple use/sustained yield (See definitions)
– BLM
• Classification and Use Act; FLPMA
BLM (Public Domain) Planning (FLPMA)
• Two step process:
1. Preparation and maintenance of inventory of all
public land resources
• FLPMA, §201
1. Resource management plans (RMPs) in accord with
criteria at Section 202 of FLPMA:
–
–
–
Replace the old management framework plans (MFPs) that
were prepared under the Classification and Use Act
General guidelines
Priority to “areas of critical environmental concern”
ACECs
Forest Planning
• Three levels
– National planning
• Renewable Resources Program (RPA of 1975)
– Regional Planning
• Regional guide
– Forest level planning
• Land and Resource Management Plan (LRMP)
• LRMPs divides forest into management areas
and establishes management prescriptions for
each area
– Determine suitability of lands for timber
production
– Monitoring is required but not done very well
Consider the Differences between the
BLM and Forest Service
• Different histories and agency cultures
• Different levels of supports
• Different political structures
Ohio Forestry v. Sierra Club
• Challenge to LRMP on the Wayne National
Forest
• Sierra Club rejects challenge on grounds that
case is not ripe
– Why? What is the test for ripeness?
– Is an LRMP every ripe for review?
• Note that land use plans often make the most
critical decision -- which lands will be
withdrawn from use and which will be
recommended for special protection
The Focus on Resources
• The issues covered thus far –
– Philosophical
– Political
– Constitutional
– Procedural
Help inform the practice of natural resources law
• The next set of materials look at individual
resources to see how particular problems
develop and how they are addressed