Overton Park and the“New” Administrative Law

Environmental Law

Fall 2008

The “Old” Administrative Law

• Fights over New Deal proliferation of agencies, push for procedural checks

• 1946—”contending forces came to rest” on Administrative Procedure Act (APA)

• Emphasis on Independent Regulatory Agencies (economic regulation)

• Emphasis on big, formal proceedings (esp. trial-type hearings)

Evolution of the (No Longer) New Administrative Law

• Capture and “Iron Triangle” theories– Debunking of neutral expertise

• Single-mission rather than single-industry agencies

• Executive rather than Congressional accountability

• Public participation, “new public interest lawyers”

• Aggressive judicial review (“hard look”)

Simplified Iron Triangle:Forest Products

USDA Forest Service

Timber Industry Congressional Overseers

Recreational users, enviros, etc.

Complex Iron Triangles:Major Dams

USACE, BLM, FERC, BPA

Electric Utilities,

Consumers,

Barge operators,

Irrigators, etc.

Congressional overseers,

Executive,

Media

Enviros

Endangered Species Bureaucracies

Tribal governments

Fishers (commercial, sport, agencies)

Etc., etc., etc.

The practice of Environmental Law is (almost always) political lawyering.

You need to be aware of the political context, and the problems

and opportunities it creates.

The Overton Era

• Things other than formal adjudication and formal rulemaking can be reviewed as “final agency action” (There is a strong presumption of reviewability.)

• “Proprietary functions” are as reviewable as other functions.

• A paper trail can be an “administrative record.”• If the administrator doesn’t create a proper

paper trail, s/he can be deposed and face trial in a district court.

Overton, continued

• Agency discretion will be narrowly construed (loss of trust in objectivity and neutrality)

• Part of “abuse of discretion” review is policing whether the agency has looked at the right factors and assigned them the proper weights (under the statute).

• “Arbitrary and capricious” fact review is meaningful (“hard look”).

Underlying assumption:Judicial review is an important

check on bias and capture. This accountability mechanism

should be widely available.

Checklist of Grounds for Court Reversal

• Violation of statute (includes failure to consider proper factors, wrong weighting)

• Didn’t provide procedures required by law– Specific statute– APA or other general statute (e.g., NEPA)– Agency’s rules of practice

• Inadequate factual support– Substantial evidence (formal/hybrid rulemaking or

adjudication)– Arbitrary and capricious

• Constitutional defects