D.C. Circuit upholds DOI Natural Resource Damage Assessment regulations, dismissing one claim for failure to exhaust administrative remedies

A broad based challenge to DOI's Great Lakes Type A Natural Resource Damages assessment rules was rejected in National Ass'n of Manufacturers v. Department of the Interior, --- F.3d ---- (D.C. Cir. 1998). On the merits, the court upheld DOI's interpretation of CERCLA using a Chevron analysis that the statute was unclear and the agency's interpretation reasonable. In addition, the court upheld as reasonable the agency's computer models and predictions. One of NAM's claims was dismissed because it had failed to exhaust its administrative remedies. The court did not remark on the fact that this was rulemaking, rather than adjudication. It merely cited several cases for the proposition that issues cannot be raised on judicial review without having first given the agency a fair opportunity to pass on the issues in the administrative proceeding. These citations, however, are all to cases of adjudication or Federal Communications Commission rulemaking subject to 47 U.S.C. § 405, which specifically conditions review of issues in those rulemakings upon a person first raising the issue before the Commission.

D.C. Circuit rules two EPA memoranda do not constitute regulations, but in so doing essentially grants the relief desired

EPA issued two memoranda in an apparent attempt to expand a National Priority List site to include an area not previously within the listed site. The Comprehensive Environmental Response, Compensation and Liability Act, however, requires NPL sites to be established by notice-and-comment rulemaking. Companies affected by the purported site change sued for a declaration that the memoranda were an invalid rule. EPA denied that they were a rule or even that they were an attempt to change the NPL site. The D.C. Circuit in Montrose Chemical Corp. of Cal. v. EPA, 132 F.3d 90 (1998), held that the memoranda were not rules. The court applied the test enunciated in American Portland Cement Alliance v. EPA, 101 F.3d 772 (D.C. Cir. 1997), which looks to three criteria to determine if something is a regulation: the agency's own characterization, whether the document was published in the Federal Register or the CFR, and whether the action had binding effect on the parties or the agency. Here the memoranda met none of the criteria. EPA had always denied that they were a rule; they had not been published anywhere; and EPA conceded that they could not have binding effect. Accordingly, the court dismissed the plaintiffs petitions for review. Nevertheless, the court said, "lest the memoranda might be interpreted to contain an agency decision affecting the [site's] NPL status, we vacate that decision."

D.C. Circuit upholds congressional delegation to the Secretary of Agriculture of its authority to approve interstate compacts and upholds exercise of that delegation

In 1993 six New England states entered an interstate compact to raise the minimum price milk processors pay farmers for milk. In 1996 Congress passed the Federal Agricultural Improvement and Reform Act, which consented to that compact but subject to certain conditions, including that the Secretary of Agriculture find that there was a "compelling government interest" in implementing the compact. When the Secretary made that finding, plaintiffs filed a challenge to the finding both on its merits and on the authority under which it was made. They argued that the constitutional requirement for Congress to consent to interstate compacts precluded a "consent" that was conditioned upon a finding by an executive officer. While a case of first impression, the D.C. Circuit saw no reason to treat this delegation of legislative authority to an executive officer any differently from delegations of Congress's Article I, Section 8 authorities, for which there is ample precedent. Milk Industry Foundation v. Glickman, 132 F.3d 1467 (1999). The court found that there was an intelligible standard to guide the Secretary, and on the merits the court found that the Secretary's determination of a compelling government interest was not arbitrary and capricious.

Paperwork Reduction Act provides relief to a party!

In 1986 the Federal Communications Commission granted a cellular phone service license for the Portland, Maine, area to PortCell, but in 1989 upon an appeal by competing applicants the Commission determined that PortCell had failed to file the necessary evidence of "firm financial commitment." Nevertheless, because of other factors weighing in favor of PortCell, the Commission decided to waive that requirement. This decision was overturned by the D.C. Circuit in 1990. Ultimately, the license was awarded to a competitor, and PortCell filed a petition for reconsideration. The proceeding was still ongoing in 1996 when PortCell raised a Paperwork Reduction Act claim before the Commission. That claim was that because there had been no OMB approval of the requirement to submit "firm financial commitment" information in 1993, PortCell could not be penalized for not submitting it. The Commission agreed and rescinded the license it had awarded and presented it to PortCell. In Saco River Cellular, Inc. v. FCC, 133 F.3d 25 (1998), the D.C. Circuit upheld the Commission's action granting the license to PortCell. It agreed that PortCell could not be penalized for not submitting information that had not received OMB approval, and hence the court's earlier decision overturning the waiver of the requirement was simply inapplicable -- the requirement itself was not effective. The main issue was whether this PRA claim could be raised so long after the fact -- PortCell had not mentioned it at the time as an excuse for not submitting the information. The court relied on the 1995 amendments to the PRA that included a provision that a person can raise such a PRA claim "notwithstanding any other provision of law," which it interpreted to include requirements to raise issues before the Commission in a timely fashion.

Animal rights group founders once again on the shoals of standing

The Animal Welfare Act requires the Department of Agriculture to issue regulations to set minimum requirements for the physical environment for primates that will promote their psychological well-being. An animal welfare group sued the Department, alleging that the regulations were not consistent with the statutory requirements. Although they were successful in the district court, on appeal, in Animal Legal Defense Fund, Inc. v. Glickman, 130 F.3d 464 (D.C. Cir. 1997), the court dismissed their case on the ground that they did not have standing. Judge Sentelle, writing for the majority, questioned whether the individual plaintiffs suffered cognizable injury by seeing (and being horrified at seeing) primates psychologically and physically injured in various zoos because of their physical environment, but he relied instead on the determination that even if injured, that injury was not caused by the Department of Agriculture regulation. He said, "we are aware of no cases -- and appellees have provided us with none -- in which the government was said to have caused a constitutional injury by failing to issue regulations that would have forbidden third parties from engaging in conduct that caused a plaintiff's injury." Moreover, in his view the affidavits suggested that the animals' injuries were caused not by compliance with inadequate regulations but by the failure of the Department of Agriculture to enforce the existing regulations. The ALDF also asserted an independent basis of organizational standing -- that it had suffered a procedural injury when the Department had failed to include an important issue in its notice of proposed rulemaking, thereby depriving ALDF of the required notice. The court pointed out that mere procedural injury, unconnected to a concrete injury, is not sufficient for standing. Judge Wald dissented. She reiterated that both the Supreme Court and the D.C. Circuit have accepted as cognizable injury the aesthetic injury of seeing animals injured. Moreover, if the Department's regulations allow the continuing physical injury and are unlawful, as alleged, then if the Department adopts correct regulations, the zoo will either comply or stop housing primates -- both of which would relieve the individual plaintiffs of the aesthetic injury.