Administrative Law

• Author: Stephen M. Johnson
• Pages: 46-71

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Chapter 3

Administrative Law

The laws that protect wetlands in the United States are administered by the United States

Environmental Protection Agency (EPA), the United States Army Corps of Engineers (the

Corps), and a variety of other federal, state and local agencies. It is important, therefore, to

understand the basic principles of administrative law in order to comprehend the nuances

of federal and state wetlands protection laws. This Chapter provides a general introduction

to administrative agencies and administrative law. Although the Chapter focuses primarily

on federal agencies, state and local agencies are often governed by state laws that closely

resemble the federal laws.

I. Nature of Administrative

Agencies

Administrative agencies are ubiquitous.

Think, for a moment, about your typical

day. Your alarm clock wakes you to the

sounds of your favorite radio station. That

station is licensed and regulated by the

Federal Communications Commission, a

federal administrative agency. As you

jump into the shower, the water may be delivered to your home by a municipal or regional

water authority, a public utility, which is usually regulated by a state utility commission. The

water quality is regulated by federal and state environmental or health agencies.

When you go to the kitchen for breakfast and pour yourself a bowl of cereal, you’ll notice

that the cereal package includes nutritional labels required by the Food and Drug

Administration. In addition, the production of the ingredients in the cereal, and in most of

the other foods that you put on your breakfast table, is likely regulated by federal, state and

maybe local agricultural and environmental agencies. Those products were produced by

businesses that were required to adhere to fair labor standards and workplace safety

standards set by federal and state labor departments. The electricity in your home is most

likely provided by a utility that is regulated by federal and state energy, environmental and

labor agencies, as well as state utility commissions.

If you drive to work, the car that you are driving was also likely produced in a factory that

was subject to fair labor and workplace safety standards. In addition, the car was built to

Resources

List of Federal Agencies from USA.gov and the

Federal Register

Administrative Conference of the U.S. (ACUS)

Office of Management and Budget (White House)

Sourcebook of U.S. Executive Agencies (ACUS)

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comply with safety and environmental standards set by federal and state transportation and

environmental agencies. Indeed, it is hard to identify events in your daily routine that are

not touched, in some way, by administrative agency regulation.

Administrative agencies exist at the federal, state and local levels and are often referred to

as the “fourth branch” of government. As is obvious from the discussion above, agencies

exert broad authorities over public and private activities. Moreover, agencies can take a

variety of types of actions. First, agencies often create standards, limits or other

requirements that apply to the communities that they regulate (rulemaking). For instance,

an environmental agency may set limits on the amount of lead that can be emitted into the

air by a factory or a car. As another example, in the context of wetlands regulation, the EPA

and Corps establish rules that outline the requirements for obtaining a permit to fill wetlands

under the Clean Water Act. See Chapter 6, infra.

In addition to setting standards and making rules, agencies apply the law and the rules that

they make to specific factual situations on a case-by-case basis (adjudication). In the

wetlands context, for instance, the Corps decides whether to issue or deny a wetlands

permit, and what conditions to include in the permit, by applying the Clean Water Act and

its regulations to the developer’s proposed activity. See Chapter 6, infra. Similarly, the

Corps or EPA can bring an administrative or judicial enforcement action against a person

when the agency determines that the person’s activities violate the Clean Water Act and/or

the agency’s regulations. See Chapter 10, infra.

In order to create rules and to make decisions on a case-by-case basis, agencies also

collect information from the regulated community and other sources. They maintain that

information, make much of it available to the public and often create reports based on the

information.

Consequently, administrative agencies engage in activities that can be characterized as

legislative (setting standards and establishing other rules), judicial (applying the law to

facts on a case-by-case basis) and executive (implementing and administering the law).

This combination of functions in federal administrative agencies creates some tensions,

because the United States Constitution exclusively assigns these functions to other

branches of government. Article I of the Constitution creates the Legislative Branch, and

provides that “[a]ll legislative powers herein granted shall be vested in a Congress of the

United States.” U.S. Const., Art. I. Similarly, Article III creates the Judicial Branch, and

provides that “[t]he judicial power of the United States shall be vested in one Supreme

Court, and in such inferior courts as the Congress may from time to time ordain and

establish.” U.S. Const., Art. III. Finally, Article II of the Constitution provides that “[t]he

executive power shall be vested in a President of the United States.” U.S. Const., Art. II. In

contrast to those direct statements, there is no provision in the Constitution that explicitly

creates or authorizes the creation of administrative agencies or authorizes them to carry out

the powers delegated to the legislative, judicial or executive branches of government.