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
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.