Bias in environmental agency decision making.

Author:Kuehn, Robert R.
Position:I. Introduction through II. Fairness in Administrative Law C. A Taxonomy of Agency Bias 3. Prejudgment of Facts, Law, or Policy, p. 957-992
  1. Introduction II. Fairness in Administrative Law A. Doctrinal Bases for Requiring an Unbiased Decision Maker. B. Impermissible Bias as a Function of Type of Proceeding C. A Taxonomy of Agency Bias 1. Conflict of Interest 2. Personal Animus or Favoritism 3. Prejudgment of Facts, Law, or Policy 4. Separation of Functions 5. Ex Parte Communications 6. Improper Political Influence III. Empirical Study of Bias in Environmental Proceedings A. Study Design and Methods B. Study Results IV. Conclusion I. INTRODUCTION

    When the British Petroleum (BP) Deepwater Horizon drilling rig began leaking oil into the Gulf of Mexico, attention turned to the cozy relationship between BP and officials at the Minerals Management Service (MMS) charged with developing and enforcing environmental and safety regulations for oil operations on federal lands. Inspector General reports revealed that MMS employees had been accepting free gifts from oil and gas firms, many of whom employed their family members and personal friends, and engaging in sexual relationships with industry officials. (1) It was common practice for the regulatory agency, which referred to the oil companies as "clients" and "customers," to waive environmental reviews and rubber stamp industry-proposed standards as satisfying the federal requirements. (2) One cause of this institutional failure was the conflict created by combining regulatory and revenue-collection functions within the same agency, which is alleged to have created bias within the MMS toward oil industry projects and requests. (3)

    In the licensing proceeding for the Yucca Mountain radioactive waste disposal facility, parties alleged that some Nuclear Regulatory Commissioners prejudged whether the Department of Energy could legally withdraw its licensing application. Two counties in the proceeding moved for their recusal based on statements during congressional confirmation hearings that they would not "second guess" the Department of Energy's decision to abandon the project. (4) What looked to the parties like an obvious case where a reasonable person would harbor doubts about the impartiality of the decision maker was, nevertheless, viewed by the commissioners as an impartial commitment not to question the basis for a party's actions. (5)

    More recently, critics of the proposed 1,700 mile Keystone XL oil pipeline allege that the environmental review process has been tainted by State Department favoritism toward the company that plans to build the pipeline and by a financial conflict of interest in the company hired to develop an important environmental impact statement. (6) Responding to a request from members of Congress, the State Department's Office of Inspector General conducted an investigation finding neither evidence of improper influence, nor a relationship between the pipeline proponent and the environmental impact statement contractor, nor bias by the Department toward the pipeline company. (7)

    Similar issues of bias repeatedly occur in state agency environmental decisions. An agency director mentioned to public officials that a pending landfill permit application seemed like a "political hot potato," implying that it could be denied for that reason. (8) In another case, a member of a county board was quoted in a newspaper as saying, prior to a hearing on a landfill siting application, that residents in the area "have had enough of landfills." (9) The heads of state environmental agencies have repeatedly faced calls for their disqualification based on possible conflicts of interest. (10) Governors, with the power to appoint and dismiss agency decision makers, are often aggressive proponents or opponents of projects and have not hesitated to express their opinions, often in very strong terms, on how ongoing disputes regarding those projects should be resolved by state agency officials. (11)

    Indicative of the confusing outcomes of many of the court cases dealing with allegations of impropriety in environmental proceedings, the "political hot potato" reference was deemed sufficient evidence of partiality to force the recusal of the agency official. (12) Yet, declaring that there are already enough landfills in the area of a proposed landfill was held not to indicate to a disinterested observer that the decision maker had in some measure adjudged the merits of the case in advance of the landfill siting hearing. (13)

    Beyond the reported instances, perceptions of bias in environmental proceedings are widespread. (14) Where bias occurs, it can have significant impacts on the implementation and enforcement of environmental laws. Biased proceedings--by prejudicing the outcome and leading to decisions that are not based on the facts or law--can undermine the goals of environmental laws, harming both public health and the environment. Biased processes also interfere with the ability of citizens and regulated entities to obtain a fair hearing and, ultimately, justice. The mere perception of unfair proceedings can undermine the credibility of, and confidence in, environmental agencies and erode support for, and compliance with, environmental programs. (15) Conversely, "enhancing the perceived fairness of the rulemaking process itself can increase the level of voluntary compliance with environmental regulations." (16)

    Yet, environmental decision makers are under substantial, and seemingly increasing, economic and political pressure to favor certain sides in environmental controversies. (17) Consequently, court cases dealing with allegations of improper agency bias in environmental proceedings, a fraction of the instances of environmental agency misconduct alleged to have occurred, are not uncommon. (18) Indeed, administrative law treatises and articles often use cases from environmental agencies to illustrate legal principles dealing with issues of due process and lack of agency impartiality. (19)

    In spite of this prevalence, there has been no systematic effort in the academic literature to address the types of improprieties that arise in environmental proceedings and how legal rules governing bias have been applied in environmental proceedings. This Article addresses that gap, taking both a doctrinal and empirical approach. Part II of the Article lays out the basic legal principles that govern fairness in administrative proceedings and illustrates how environmental cases have dealt with allegations of improper agency proceedings. Part III provides the results of the first empirical study of court cases dealing with allegations of bias in environmental proceedings, concluding that while courts do not often find agency decisions unlawful on grounds of bias, reported claims of bias have increased over the last four decades and, in some types of cases, enjoy a reasonable level of success. Finally, Part IV offers observations on addressing bias in environmental agency proceedings and suggests some reforms that would provide greater fairness in the handling of potential bias issues.


    "Bias," as used herein, encompasses a number of improper actions by or towards an agency that might affect the fairness, impartiality, or integrity of the agency's decision making. Therefore, bias goes beyond predisposition toward a party and includes matters such as conflicts of interest, ex parte communications, separation of agency functions, and inappropriate efforts to influence an agency decision. By focusing on what some have termed the "integrity of the decisionmaking process," (20) however, this Article does not address hidden cognitive biases or heuristics that also might influence the decisions of an agency employee or official and tilt a decision in a certain direction. (21)

    1. Doctrinal Bases for Requiring an Unbiased Decision Maker

      The issue of administrative fairness has been described as "one of the most complex aspects of administrative practice," (22) and determining if what appears to be a biased government decision unlawfully taints the outcome is a function of characterizing the legal basis for the allegation, the type of proceeding involved, and the type of bias alleged.

      Not all governmental decisions made in a biased manner are unlawful. To be impermissible, the biased action must be prohibited by the Due Process Clause, a provision in the underlying substantive statute, an administrative procedure act, regulations implementing the underlying statute, or government codes policing the conduct of the agency or board.

      The Due Process Clause requires some type of hearing before the government can deprive a person of life, liberty, or property. (23) In analyzing a government decision under the Due Process Clause, three limitations are relevant. First, the requirement for procedural due process only applies to "individualized fact-based deprivations" and not to "policy-based deprivations." (24) Thus, when a government decision applies to a class of individuals or entities, rather than to an individual's person or property, the right to procedural due process does not apply. (25) Second, "[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." (26) Although courts have moved away from the "right-privilege" distinction by extending due process protection to the denial of government benefits and entitlements, a party claiming a due process right to procedural fairness must still demonstrate that it possesses a liberty or property interest at risk in the proceeding. (27) Finally, where protected interests are implicated by an individualized government action, some kind of hearing is due. (28)

      Determining what that hearing must entail involves a balancing of interests under the three-part framework set forth by the Supreme Court in Mathews v. Eldridge. (29) At the very least, "an unbiased tribunal is a necessary element in every case where a hearing is required."...

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