Recent Articles of Interest

Tom J. Boer, Does Confusion Reign at the Intersection of Environmental and Administrative Law?: Review Of Interpretive Rules And Policy Statements Under Judicial Review Provisions Such as RCRA Section 7006(a)(1), 26 B.C. Envtl. Aff. L. Rev., 519 (1999). Many environmental statutes, including the Resource Conservation and Recovery Act (RCRA), have specific judicial review provisions providing for review of agency actions in the D.C. Circuit. Confusion has mounted, however, as the Environmental Protection Agency (EPA), industry, and environmental interest groups have tried to interpret the exact circumstances under which review is available pursuant to these provisions. This confusion stems in part from the wide array of agency pronouncements, including interpretive rules, policy manuals, and guidance documents, which fall within the Administrative Procedure Act (APA) definition of a Arule.@ The article analyzes the D.C. Circuit=s review of interpretive rules and policy statements, and attempts to discern a pattern that would provide guidance to interested parties seeking to comply with statutory review provisions like that in RCRA. The author calls on the D.C. Circuit to clarify the confusion surrounding its interpretation of judicial review provisions in environmental statutes.

Peter Lindseth, Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community, 99 Col. L. Rev. 628 (1999). This article argues, from the standpoint of democratic legitimacy, that supranational institutions are best understood as administrative in character, and then explores the implications of this argument by looking at the European Community. The author concludes that the Community's "democratic deficit" flows primarily from an inability to establish democratically-legitimate hierarchical supervision over supranational technocrats--a problem bound up with the historical relationship between demos, democracy and national political institutions as cultural symbols of popular sovereignty. The author examines aspects of Community law designed to maintain forms of national control, as well as two alternative strategies--democratization through the European Parliament, and "non-hierarchical" legitimation through transparency and participation rights in the Community regulatory process. Finding these strategies ultimately inadequate, in themselves, to the needs of democratic legitimation, the author turns to judicial review, critically analyzing the deference shown by the European Court of Justice to Community legislative decisions relative to the more democratically- legitimate Member States. Finding this broad deference inconsistent with the Community's administrative character, the author outlines an alternative approach -- a substantive presumption against supranational legislative autonomy -- as well as a new procedure -- a "European Conflicts Tribunal" -- to resolve conflicts over the scope of the relative legislative authority of the Member States and the Community. The purpose of these reforms would be to mediate between the legitimate needs of legislative harmonization at the Community level, on the one hand, and the persistence of the nation-state as the historically legitimate symbol of democratic sovereignty, on the other -- a tension that arguably exists in any supranational body.

Christopher Man, Restoring Effective Judicial Review of Environmental Regulations in Civil and Criminal Enforcement Proceedings, 5 Envtl. Law. 665 (1999). In Yakus v. United States, against the backdrop of World War II, a narrow majority of the United States Supreme Court held that the Emergency Price Control Act (EPCA) did not violate due process by prohibiting challenges to the validity of the implementing regulations in enforcement proceedings and allowing only a limited period in which to make pre-enforcement challenges. Justified at the time as a "temporary wartime measure" and described as "unusual, if not unique," the judicial review limitation in EPCA today is replicated in almost every major federal environmental statute. The propriety of extending Yakus to environmental statutes generally has seldom been challenged. This article argues that environmental legislation that prohibits challenges to environmental regulations after a legislatively imposed period violates due process because it levies more extreme burdens on the rights of defendants with far less compelling justifications than the war powers context of EPCA. Specifically, it begins with an overview of the judicial review provisions of EPCA and environmental statutes that follow the EPCA model. It then argues that Yakus should not be viewed as controlling outside of the war powers context and that the decision left numerous due process issues unresolved. The article next examines the due process burdens environmental statutes impose upon parties defending enforcement actions. It concludes that in order to provide a defendant a fair opportunity to challenge the enforcement of a regulation and also ensure that enforcement of environmental laws proceeds efficiently, environmental statutes should be amended to eliminate the restricted window in which a regulation can be tested and to require that all challenges to the validity of environmental statutes be brought in a court with exclusive jurisdiction.

McNollgast [Mathew D. McCubbins, Roger G. Noll, Barry R. Weingast], the Political Origins of the Administrative Procedure Act, 15 J.l. Econ. & Org. 180 (1999). For a decade after the passage of the Second New Deal, political leaders and many important interest groups fiercely debated what procedural requirements, if any, should be imposed on the new regulatory agencies. This debate led eventually to the passage of the Administrative Procedure Act (APA) of 1946. The purpose of this article is to explain the significance of the various procedural requirements that were considered, and to develop and test a political theory of why some proposals were passed while others were rejected, and why a decade transpired before legislation could succeed. Although the APA typically is seen as a codification of individual rights in a system of procedural due process, the authors argue that to answer these questions requires understanding the policy consequences of alternative procedural reforms. Thus, they develop and test a political theory, based on the views of legislators about the proper role of the federal government in regulating business, that seeks to explain patterns of support and opposition to legislative reforms. They conclude that the dominant factor explaining these patterns is support for New Deal regulatory policy, and that the primary explanation for the failure of administrative reform proposals before World War II but their success later was the desire of New Deal Democrats to Ahard wire@the policies of the New Deal against an expected Republican, anti-New Deal political tide in the late 1940s.

David B. Spence, Managing Delegation Ex Ante: Using Law To Steer Administrative Agencies, 28(2) J. Legal Stud. 259, 413 (1999). This work addresses the question of how, and how effectively, elected politicians can exert ex ante influence over the policy choices of regulatory agencies. In order to test the hypothesis that politicians can use choices about the agency=s structure and process to influence subsequent agency decisions, the author analyzes two sets of decisions made by the Federal Energy Regulatory Commission (FERC) in its hydroelectric licensing program during the 1960-90 time period. He finds, among other things, that (1) some (but not all) of the tools of ex ante political control were used to effect noticeable changes in the content of FERC decisions over time; (2) among the so-called structural controls, those that were designed to influence agency preferences appear to have exerted the most significant and lasting effects; (3) among the so-called procedural controls, those that were designed to increase the transaction costs of making particular decisions appear to have been more effective than those that merely increased the transaction costs of decision making generally; and (4) despite these effects, the FERC appears to have resisted political control, sometimes successfully, during the study period.

Emerson H. Tiller and Pablo T. Spiller, Strategic Instruments: Legal Structure and Political Games in Administrative Law, 15 J. of Law, Econ., and Org. 349 (1999). This article presents models of strategic behavior by agencies and courts where the ability to manipulate the instruments of decision making, rather than merely selecting policy choices, allows these actors to insulate their policy choices from higher level review. The theory is based on the notion that decision instruments (for example, rulemaking and adjudication for agencies, statutory interpretation and reasoning process review for courts) pose differential costs and payoffs for both the initiating and reviewing actors, each of whom have resource constraints. Because the initiating actor has the choice among instruments to make a decision (and to which a higher level reviewing actor is tied) the initiating actor can manipulate decision costs in a strategic fashion (choosing high cost instruments to discourage higher level review, in particular). This article adds new insight into how judges (and agencies) engage in strategic decision making.

Ann Woolhandler & Michael G. Collins, Judicial Federalism and the Administrative States, 87 Cal. L. Rev. 613 (1999). Federal courts are reluctant to review the work of state and local administrative agencies. Despite the presence of diversity or federal question jurisdiction to challenge final agency action, federal courts have sometimes abstained from exercising their jurisdiction out of fear of disrupting a complex regulatory scheme and displacing state courts in the uniform development of state regulatory policy. At other times, federal courts have treated review of state administrative action as "appellate" in nature and therefore beyond the jurisdiction of the federal district courts, especially when review of agency action would be deferential under state law. And at still other times, federal courts have invoked preclusion principles to bar federal challenges to agency action that was judicial in nature. While recent decisions of the Supreme Court may have moved away from imposing a jurisdictional bar, the American Law Institute proposes to revive such a limit, arguing that such review of agency action is contrary to the historic role of the federal courts and would alter their essential function as courts of original jurisdiction. In this article, Professors Woolhandler and Collins challenge these various practices preventing review of nonfederal administrative action, and they question the rationales behind them. They argue that, as a historical matter, federal courts once engaged in a robust review of state administrative action, even as to issues of state law. In addition, they suggest that concern for federal court interference with uniformity of state policy making has been overstated, while traditional concerns of federal jurisdictional policy in providing a neutral forum for out of staters as well as those raising federal challenges to state and local action, have been slighted. They also attack the characterization of judicial review of administrative action as appellate, and suggest why it is both descriptively accurate and normatively desirable to see judicial review as an original proceeding distinct from agency action. And in many cases, they observe, according state agency decision making the same level of deference that it would obtain in a state court would serve as a better measure of the respect owed such decision making than formal preclusion. Although the article takes the position that federal courts should not shy from entertaining diversity-based challenges to state administrative decision making, or even most challenges grounded in federal law, it concludes that, absent diversity, due process reasonableness challenges to agency action should ordinarily be relegated to state courts.

Symposium on United States v. Nixon: Presidential Power and Executive Privilege Twenty-Five Years Later, 83 Minn. L. Rev. 1061 (1999). Philip Lacovara, United States v. Nixon: The Prelude; Mark Rozell, Executive Privilege and the Modern Presidents: In Nixon=s Shadow; Dawn Johnsen, Executive Privilege since United States v. Nixon: Issues of Motivation and Accommodation; Saikrishna Prakash, A Critical Comment on the Constitutionality of Executive Privilege; Mark Rozell, A Response to Professor Johnsen; William Kelley, The Constitutional Dilemma of Litigation Under the Independent Counsel System; Rebecca Brown, Caging the Wolf: Seeking a Constitutional Home for the Independent Counsel; John Manning, The Independent Counsel Statute: Reading AGood Cause@ in Light of Article II; Michael Stokes Paulsen, Nixon Now: The Courts and the Presidency After Twenty-Five Years; Akhil Reed Amar, Nixon=s Shadow; Steven Calabresi, Caesarism, Departmentalism and Professor Paulsen; John Yoo, The First Claim: The Burr Trial, United States v. Nixon, and Presidential Power.

Constitutional and Policy Perspectives, 20 Cardozo L. Rev. 731 (1999). David Schoenbrod, Delegation and Democracy: a Reply to My Critics and Remarks to the Board of Trustees of the Natural Resources Defense Council, Peter Schuck, Delegation and Democracy: Comments on David Schoenbrod; Dan M. Kahan, Democracy Schmemocracy; Marci A. Hamilton, Representation and Nondelegation: Back to Basics; Hans A. Linde, Structures and Terms of Consent: Delegation, Discretion, Separation of Powers, Representation, Participation, Accountability?; Paul Craig Roberts, How the Law Was Lost; Nadine Strossen, Delegation as a Danger to Liberty; Elizabeth Garrett, Accountability and Restraint: the Federal Budget

Process and the Line Item Veto Act; William A. Niskanen, Legislative Implicaitons of Reasserting Congressional Authority over Regulations; David Epstein and Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: a Political Science Approach; Ernest Gellhorn and Paul Verkuil, Controlling Chevron-based Delegations.

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