SUBSTANCE AND PROCEDURE IN LOCAL ADMINISTRATIVE LAW.

• Author: Ponomarenko, Maria

INTRODUCTION 1528 I. LOCAL ADMINISTRATION 1534 A. The Subject Matter of Local Administration 1534 B. The Forms of Local Administration 1537 C. The Structure of Local Administration 1539 D. Existing Constraints on Local Administration 1542 1. Procedural Constraints 1544 2. Substantive Constraints 1546 3. The Procedure-Substance Mix 1548 II. TOWARD A THEORY OF LOCAL ADMINISTRATIVE LAW 1550 A. Substantive Judicial Review 1551 1. Complexity and Expertise 1552 2. Informality and Reason-Giving 1556 3. Courts and "Capture" 1559 4. Politics and Accountability 1566 B. Procedural Constraints 1569 1. Legitimacy 1570 2. Improved Decisionmaking 1571 a. Broadening Participation 1572 b. Changing Outcomes 1574 III. DOCTRINAL IMPLICATIONS 1577 A. Embracing Reason-Giving and "Hard Look" Review 1578 B. Rejecting a Local Mead 1582 C. Rethinking the Chevron-State Farm Divide 1584 D. Trans-Substantivity and Uniformity in Local Administrative Law 1585 CONCLUSION 1587 INTRODUCTION

The central questions of administrative law are well worn and familiar. What role, if any, should courts play in overseeing agency decisionmaking? Should courts focus primarily on ensuring that agencies followed certain procedures in making their decisions? Or should courts also be permitted to scrutinize the substance of the decisions reached? And to what extent can political safeguards--or internal agency controls--substitute for robust judicial review?

Federal administrative law scholars have devoted tens of thousands of law review pages to answering these questions. (1) And although scholars are no closer to agreement on the optimal mix of substantive, procedural, and political constraints on agency decisionmaking, they have, over the years, articulated a fairly coherent set of arguments about the relative benefits and tradeoffs of each. Most acknowledge, for example, that requiring agencies to comply with certain procedures--such as notice-and-comment rulemaking--has the potential to provide agencies with additional information, encourage more thorough deliberation, provide access to a greater diversity of viewpoints, and potentially increase agency legitimacy. (2) Most also recognize that procedures can introduce delay, consume agency resources, elevate lawyers at the expense of agency experts, and give powerful interest groups yet another tool with which to thwart agency regulation. (3) To the extent that scholars differ on whether there currently are too many procedural requirements--or too few--these differences stem largely from a disagreement over the relative importance or magnitude of the potential benefits and costs that procedures impose. There may not be clear answers, but at the very least, there is a relatively defined set of terms for the debate. When it comes to local administrative law, however, these relatively basic questions have gotten surprisingly short shrift. Indeed, with only a very few exceptions, it is fair to say that they simply have not been asked. (4) The literature on "administrative law" is focused almost exclusively on federal administrative agencies, and occasionally the states. (5) And although there is a rich literature on "local government law," that literature, too, has largely ignored the question of local administration. (6) To the extent that local agencies have been discussed at all, it typically has been in piecemeal fashion, by scholars who write about zoning, environmental regulation, or public health. (7) The lack of attention to local administrative agencies is striking given the sheer breadth of local administration. In large cities like Seattle, Chicago, and New York, administrative agencies have adopted thousands of regulations on issues ranging from third party delivery services, (8) to gender-based discrimination, (9) to dockless bike-sharing, (10) to public health. (11) In smaller municipalities, analogous "regulations" often are adopted by local legislatures (i.e., "ordinances"). But even still, there are many examples of more traditional administrative action as well. The Needham, Massachusetts Board of Health, for example, has adopted rules to regulate indoor tanning salons, tattoo parlors, and the sale of tobacco products, among many others. (12) In Connecticut, local planning commissions exercise final authority over all zoning decisions, including comprehensive rezonings. (13) And of course in cities large and small, agencies engage in a great deal of adjudication as well. They grant permits and licenses, make benefits determinations, adjudicate zoning adjustments, and much more. (14)

The constraints on these various forms of local administrative action vary dramatically from city to city--and sometimes from agency to agency. This is particularly true when it comes to agency rulemaking, which is exempt from the constitutional requirements of procedural due process, and also typically is exempt from the procedural constraints imposed by state administrative procedure acts (APAs). (15) In the absence of state or federal regulation, some municipalities, like Philadelphia and New York City, have adopted municipal APAs that have borrowed in various ways from the federal model. (16) Chicago, on the other hand, lacks a uniform APA, which means that agency procedures either are incorporated into specific grants of authority, or are left entirely to an agency's discretion. (17)

The availability of substantive judicial review varies dramatically as well. In New York state, agency rules are subject to a fairly robust form of arbitrariness review that is analogous to the federal "hard look" standard. (18) In Massachusetts, agency decisions are reviewed under a highly permissive standard that functions much like the constitutional "rational basis" test. (19) And in Illinois, so long as a local agency acts within the scope of its authority, its decisions do not appear to be subject to any substantive review at all. (20)

Much of this variation is attributable to the ad hoc manner in which states and municipalities have approached the question of local administrative law. Unlike state APAs, which have undergone several waves of revision and standardization, there has never been much of an effort to develop a coherent body of "local" administrative law, or even to articulate a basic set of principles that ought to guide that effort. (21) It may very well be the case that Needham's administrative procedures should look nothing like the federal government's, or even New York's--but it should at the very least be possible to articulate the factors that ought to drive these differences. And yet that is precisely what is missing from the literature.

This Article begins to fill this gap by proposing the beginnings of a framework for governing the local administrative state. In doing so, it takes as its jumping off point the familiar set of arguments in federal administrative law about the relative advantages and drawbacks of substantive and procedural constraints on administrative action. And it considers the degree to which these various arguments would apply--or perhaps apply differently--to local agencies. Importantly, the goal here is not to resolve the debates that have divided federal administrative scholars and practitioners, but rather to point out why we might want to be more (or less) skeptical of various kinds of regulatory constraints in the local context.

It argues that at the local level, the basic requirements of reason-giving backed by substantive judicial review may actually do more to improve the quality of agency decisionmaking, without necessarily skewing agency decisions in the ways that federal critics claim. Given the relative informality of local decisionmaking processes, requiring local agencies to justify their decisions on the record may have a more tangible impact on agency decisionmaking than it does in the much more bureaucratized world of federal administration. At the same time, many of the familiar arguments against substantive judicial review are likely to be much weaker locally. For example, the conventional wisdom in federal administrative law is that generalist courts often are unable to grasp the technical complexity of agency regulations. At the local level, however, the issues that agencies deal with tend to be less complex--and therefore more legible to reviewing courts.

On the other hand, this Article suggests that although procedural requirements may play an important role in fostering agency legitimacy, they may be less likely at the local level to improve the quality of the decisions made. Because local officials tend to be more proximate to the entities they regulate, and generally more familiar with local concerns, procedures may be less likely to generate new and valuable information that agency officials would not have obtained in some other way. In addition, because local processes tend to be less salient, and overall participation levels quite low, procedural requirements also are less likely to bring in outside perspectives or counteract the views that agencies already are likely to hear through more direct contact with regulated groups.

Together, these arguments suggest that the dominant mode of local agency governance, which tends to be heavy on procedure, but light on substantive review, may have it exactly backwards. In particular, this Article casts doubt on the value of purely procedural constraints on agency decisionmaking that are completely untethered from any substantive scrutiny--for example, ordinances that require agencies to hold public hearings, but do not require agencies to respond on the record to the comments made. And it raises serious questions about the desirability of some proposals to incorporate into local administrative law the basic intuition behind the Supreme Court's decision in United States v. Mead, which held that courts should generally afford more deference when agencies act with a greater degree of procedural...