Overton Park v. Volpe - United States Supreme
Court 1971
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Road through the park case
What was the protest - why did the citizens say
this was an improper decision?
 Citizens protested, said the statute only allowed
this if there was no feasible and prudent
alternative route
What was wrong with the record?
 Secretary gave no reasons
Feasible and Prudent??
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What does feasible mean?
How can it conflict with prudent?
Why is it always cheaper and easier to build roads
through parks and public lands?
Who are the opposing constituencies?
What indicates that this is a compromise law?
District Court
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District court gave Secretary a summary
judgment, affirmed by the Cir.
 These were based in part on briefs that went
beyond the original record
Standard of Review
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Is this a rule making?
Is it an adjudication, i.e., was there a trial type
proceeding?
 What about the public hearings?
 Were they to make decisions or to take input?
 Were they done by the feds at all?
Did the stature require de novo review?
What is the Hard Look Review?
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"thorough, probing, in-depth review"
Hard look kicks in after Chevron step 1
The court still defers to the agency's policy making role
The court looks hard to make sure the agency considered
all the relevant factors in making the policy
 Is this really meddling in policy making?
 What is the cost to the agency of reviewing lots of
factors in depth to satisfy the court?
United States Supreme Court
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The United States Supreme Court said that the secretary
did not have to make formal findings
 The record needed to support the action and it could
not be supplemented by briefs.
If the secretary does not make findings, then the district
court has two alternatives:
 Remand, or
 Require testimony of agency decisionmakers,
effectively building the missing record
Why is the second alternative not attractive to the
agency?
Environmental Regulation
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Permitting new stuff
 What is the effect of delay here?
Enforcing rules against old stuff
 Who pushes for delay here?
Why is it harder to push for action than for delay?
Why could the environmentalists get the court to
push the agency in the regulators?
Atomic Power
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What are the fears?
 Administrative delay stopped the industry
 Hugely expensive plants whose profitability
depended on rate setting decisions that are
subject to politics
What new concerns has shifted environmental
fears since the 1980s?
The Evolution of Policy as Politics Change
The Seat Belt Saga
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First, there is popular concern about accidents
Then interest groups
Individual stories - MADD is an example
Nader and Public Interest
Unsafe at any Speed - 1965
Insurance industry
The Seat Belt Saga II
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Then Congress passes the Traffic and Motor
Vehicle Safety Act
1967 - regulation requiring seatbelts
1972 - realized that people were not wearing the
seatbelts
Regulation requiring automatic seatbelts or
airbags by 1975
The Seat Belt Saga III
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Required cars between 1973 and 1975 to have
automatic seatbelts or ignition interlocks
Chrysler v. DOT affirmed the regs
Industry choose interlocks - why?
1974 - Congress passed a law banning regs
requiring interlocks and said that all future regs
on passive restraints had to be submitted to
Congress for legislative veto
 Chada killed that
The Seat Belt Saga IV
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DOT under Ford withdrew the regs
DOT under Carter (a few months later) passed
new passive restraint regs for 1982 and Congress
did not veto them
1979 - Regs were affirmed in Pacific Legal
Foundation v. DOT
The Seat Belt Saga V
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1981 - DOT under Reagan withdrew the regs
because the car companies were going to use
automatic seatbelts that could be disconnected.
1983 - Motor Vehicles Manufacturers Assoc. v.
State Farm hit the United States Supreme Court
Motor Vehicle Manufacturers v State Farm
Mutual Auto
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Why does State Farm care?
What was the key agency law issue in this case?
 How was this relevant to the transition from
Clinton to Bush?
 How did it drive the midnight rulemaking?
What was the rationale for the court's ruling?
How is this different from saying that agencies are
bound by precedent?
The Seat Belt Saga VI
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1984 - DOT (Libby Dole) promulgated a reg requiring
automatic seatbelts or airbags in all cars after 1989,
unless
 2/3 of the population were covered by state seatbelt
laws, and
 the laws met certain criteria
What did some states do?
 $5 penalty
 No stop
 No meaningful seatbelt defense
Most State laws did not meet the criteria
The Seat Belt Saga VII
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1997 - most newer cars had airbags
1998 - airbags kill grannies and little kids!
 Nothing new - known at the time
 Save many more
1999 - You can get your airbag disconnected
 Products liability issues?
What Else Affects Automobile Safety?
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Drunk driving laws?
Anti-lock brakes?
Stability control systems?
Speeding?
 Why not lower speed limits?
 Where do most accidents happen?
Limits on teen age drivers?
Regulation of Automobile Gas Mileage
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What are the benefits of reduced oil consumption?
 For individuals?
 For the country?
How do you make cars more efficient?
What are the trade-offs?
 Convenience
 Cost/safety
 What limits safety of SUVs?
Corrosion Proof Fittings v. U.S. E.P.A., 947
F.2d. 1201 (1991)
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Rulemaking under the Toxic Substances Control
Act
 This act is not self-implementing
 Nothing is regulated until the agency set
standards
How long was this rule in process?
What are the Requirements of the Act?
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"Reasonable basis" to believe that there is an
"unreasonable risk of injury"
 What do you consider to decide if the risk is
unreasonable?
 Does this mean no risk?
The regulation must be "the least burdensome"
 What is the burden on the agency when it bans
something?
Cost/Risk/Benefit
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What is asbestos really good for?
What are the potential risks for substituting other
materials?
Do we know that these materials are safe?
 Ever work with fiberglass insulation?
How many lives were they going to say?
What was this going to cost?
Why did the agency really ban asbestos?
Judicial Review
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Why is it easier for the court to second-guess the agency
than for the agency to do the cost benefit analysis?
Can any risk/cost/benefit analysis be complete?
 What are the conflicts between discounting to present
day costs and trying to monetize future life savings?
What was the long term impact of the agency getting
hammered in this case?
How about when the Corp got hammered over the
environmental impact statement for Lake Pontchartrain
flood gates?