An agency has the capacity to act with the force and effect of law. Did the agency have authority to do what it did from a statute? If the statute says that the agency can promulgate rules interpreting the statute (and therefore passes Mead), do we need to evaluate within the statute to determine if Congress precluded some kinds of interpretation (for example, if the statute defines a term, can the agency promulgate a rule refining the meaning of that term?)? There are four types of agency actions: 1. Notice and Comment Rulemaking 2. Formal Adjudication (Court-like Procedures) 3. Informal Adjudication – Did not (555). 4. Guidance Documents OIRA – If it is an executive agency, and the economic impact is greater than $100M, then OIRA standards must be met (Ch. 6 – Presidential Control of Agency Action). Notice and Comment Rulemaking Notice of Proposed Rule – Governed by 553(b). Issue Notice in Federal Register – Notice contains one or more proposed rules. A common error is to publish the notice online, which is not enough and not necessary. Statement of the time place, nature of the public rulemaking proceedings. References the legal authority under which the rule is proposed – the statute that gives the agency the authority to make the rule. Contains terms of substance of the proposed rule or descriptions of the subjects/issues involved. Make any studies used as the basis of the rule available. Exceptions to Notice Requirement – 553(b) The notice requirements don’t apply when the agency is making guidance/interpretative rules (b/c they don’t speak with the force and effect of law). General statements of policy (guidance). Press releases (guidance). Rules of agency organization, procedure, practice (intra-agency). If notice and comment procedures be impracticable, unnecessary, or against the public interest. Comment Period – Interested persons must have an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. Interested Persons – individuals, partnerships, corporations, associations, or public and private organizations and other agencies (inclusive standard). trial
Opportunity to submit written data views or arguments (at a minimum, and maybe oral presentation if the statute requires). Opportunity to participate – There must be a reasonable comment window, which is usually 60 to 90 days. Example – NHTSA Standard 208 – passive restraints (airbags vs. seatbelts). Consideration – The agency must carefully consider the comments and materials received from the interested parties. Considering comments received the comment period ended, the rule is arbitrary and capricious. A comment consider the need for a statute to conduct a statutory analysis, scientific analysis, economic analysis, etc. Scientific Analysis (pg. 18 of OL) – agencies evaluate the risks of a bad event occurring and develop responses. Risk Assessment – The agency gathers info to evaluate the probability and magnitude of the risk. Risk Management – The application of political, social, and economic policy to determine the response to the risk assessment. Margins of – There is always a margin of error, so there is a question of reliability. Trans-scientific Questions – There are questions that can’t be answered with science—there will always be a gap between knowledge and a scientific answer, because you can’t perform enough experiments. Uncertainty – How did the agency handle the uncertainty? Generally, you should make a conservative assumption; however, see Yucca Mountain. Legitimate Results – The results may be illegitimate if the agency had made a policy judgment before doing an assessment. Economic Analysis – Use to assign a dollar amount to the benefits of a regulation, and then compare to the costs. The quality is based on the assumptions. Valuation Methodology – Did the agency use a willingness to pay or a capital approach to determine the value of statistical lives? Critique either approach based on the arguments on page 22 of the OL – Further Notes on Issues of Monetization. Discount Rate – Did the agency select a proper discount rate? It is usually about 7% unless the statute states otherwise. Does the statute require something less than full cost/benefit analysis (pg. 26 of OL)? Example – State Farm – The Court used the hard look doctrine and said that the NHTSA did not carefully consider the comments regarding passive restraints.
Example – State Farm – The court said that the agency hadn’t carefully considered the evidence in the record because it did not explain why airbags should not have been selected. The record did not support the decision. Substantial Evidence – The decision must be supported by substantial evidence in the record when the decision is from formal adjudication. Arbitrary and Capricious – The agency must have examined the relevant data and articulated a satisfactory explanation for its actions, including a rational connection between the facts and the choices made. Persuading the Court – What theory of interpretation does the judge follow? Intentionalism – The court looks to find Congress’s meaning/intent. Would use all textual tools, all substantive tools, legislative history, and purpose. Purposivism – The court looks to the purpose and aims. Would use all textual tools, all substantive tools, legislative history, and purpose. Process Purposivism – What would a reasonable legislature have sought to accomplish under the circumstances? What would a reasonable legislature do? Would use all textual tools, all substantive tools, legislative history, and purpose. Imaginative Reconstruction – The court should stand in the shoes of Congress and ask how it would have resolved the issue had they foreseen it (WWCD?). Would use legislative history and purpose. Textualism – Look just at the text (Scalia). Would just use the text. Dynamic Interpretation – Courts apply their understanding and values. Anything. Canons of Interpretation Textual Linguistic Ejusdem Generis – General terms are construed in relation to the specific terms proceeding them (dogs, cats, and other pets – does not include cows). Noscitur a Sociis – A word is known by the company it keeps. A word is interpreted consistently with the surrounding terms (loss, miscarriage, or negligent transmission – all refer to delivery). Expressio Unis Est Exclusio Alterius – Stating one thing precludes the others. It applies to lists. When a statute says to do something one way, it precludes all other ways. Exceptions If Congress says the list isn’t exhaustive (10th Amendment). If the application precludes state action, it will probably not apply (preemption). Punctuation – never sufficient, but adds to the weight of the conclusion. Parentheticals get less weight.