How Administrative Law Polices Itself

• Author: John C. Cruden
• Position: Principal Beveridge & Diamond, PC
• Pages: 43-43

JANUARY/FEBRUARY 2022 | 43

Reprinted by permission from The Environmental Forum®, January/February 2022.

Copyright © 2022, Environmental Law Institute®, Washington, D.C. www.eli.org.

Sidebar

SI DE BAR

Environmental law is one of

the few parts of U.S. law that

we did not inherit from Rome

or England. The United States cre-

ated it, grafting onto it principles

of administrative law, and it has

been interpreted by courts and

implemented by selected agencies

through regulations and guidance

documents. Litigants often under-

standably seek the record of agency

decisionmaking, which can aid them

in seeking redress in court.

Indeed, in the United States

litigation has been the central way

that environmental law has been

explained or its use contested. For

instance, even though the Superfund

law is silent on whether joint and

several liability applies, courts have

found that tort-based doctrine in-

deed does. Similarly, although there

is no real statutory basis for courts

to give federal agencies deference

in their regulatory decisionmaking,

the Supreme Court has fashioned

requirements in that regard.

To the courts, the most impor-

tant guidepost on making and inter-

preting rules is the well-established

Administrative Procedure Act. The

APA pre-dates the modern era of

environmental law, but it has been

applied four-square to environmen-

tal cases. The APA provides needed

regularity and predictability. And it

has welcome mandates for open-

ness, transparency, and citizen in-

volvement.

Several times during the Trump

presidency, as a former assistant

attorney general I was asked to

speak to various groups about the

massive amount of litigation en-

gendered by that administration

— executive orders and agency de-

cisions that were being challenged

by states, citizens, environmental

groups, and industry. I always point-



few years of the administration, in

case after case decisions were be-

ing overturned for their procedural

violations. Trump’s APA record

was dismal, and even the defer-

ence granted agencies under the

Chevron doctrine

— one of the most cited Supreme

Court cases of all time, and a case

well known to all environmental

law practitioners — did not save

the Trump administration.

The APA and Chevron can be

criticized for how they are applied

in a particular case by an agency

or a reviewing court. In particular,

some elements of the APA, like its

requirement for a “record” for de-

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amount of litigation. Because the

record can be long and complex,

agencies differ in their interpreta-

tion of that requirement, particular-

ly concerning privileged documents.

Litigants always want more

documents, often sure that such

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prepared record does not, and they

use not only discovery but freedom

of information requests to obtain

more documents.

The government, on the other

hand, having now prepared a record

in accordance with the agency’s

own standards, should be prepared

to have that record carefully scru-

tinized to determine whether it is

complete, whether it answers issues

that arise during notice and com-

ment, and whether it adequately

supports the decision being made.

There are numerous examples

where courts have found the record

inadequate, and thereby either in-

validated the agency decision — as

they did with the Trump-era Afford-

able Clean Energy plan, a case now

before the Supreme Court — or

remanded it for more information

or more support in the record.

Despite these criticisms, the APA

remains the backbone of the admin-

istrative process. It has well-under-

stood procedural requirements that

must be met by any administration

and any agency. It displayed its force

during the Trump presidency, and

protected citizens from a series of

both poor and inadequately sup-

ported decisions. Some litigants

will now attempt to use the APA

as their lodestar in contesting the

Biden administration’s decisions. Re-

sulting rules are more likely to have

longevity, so long as they adhere to

robust public comment and meet

head on careful judicial scrutiny.

The continuing vitality of the

APA, its requirements for how regu-

lations come to be, and then how

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still remains central to democracy

and should continue to guide courts

and litigants in the future.

How Administrative Law Polices Itself

“ere are numerous examples

where courts have found the

record inadequate, and thereby

either invalidated the agency

decision or remanded it for more

information or more support in

the record”

John C. Cruden

Principal

Beveridge & Diamond, PC