Administrative Law Prof Blog

The filed-rate doctrine

is at the intersection of torts and administrative law.  In "Eighth Circuit Affirms Dismissal of Consumer Fraud Action Based on the Filed Rate Doctrine", on his Consumer Class Actions and Mass Torts blog, Russell Jackson discusses a recent case where the plaintiff, claiming his cable company got paid twice for the same improvements, ran head into the filed rate doctrine.  The defendant got the FCC to approve a surcharge for the improvements, then it got the local city council to approve a rate hike for the same stuff.  However, under the filed rate doctrine courts will not interfere with the rate for a regulated utility when the rate has been approved by the appropriate authority.  Even where, as here, fraud is alleged, any court action

... is directly contrary to the filed rate doctrine, which "prohibits a party from recovering damages measured by comparing the filed rate and the rate that might have been approved absent the conduct in issue."

EMM

Theory: Zaring on networks of regulators

David Zaring (Wharton School of Business) has posted a draft paper on networks of regulators, "Why do some networks fail and others succeed?  A case study in financial regulation",  prepared for the Georgia Law School Workshop, 2/19/09.   This paper describes and analyzes the effectiveness of several international networks, of greater and lesser formality, in which the U.S. Securities and Exchange Commission has participated.  He comes up with some counterintuitive conclusions.

While this is more of a political science study than a legal study, it provides a useful perspective on how regulators at the same level of government can work synergistically.  I suggest it is important to recognize that the process Zaring describes at the international level happens at lower levels as well (e.g., county associations of municipal governments).  Recognized but not emphasized in this paper is the effect of different interests at different levels of government.  For example, municipal governments within a county may have interests in common that conflict with the interests of the county government.  The reasons for this can range from partisan politics to NIMBY self-interest.  Zaring's paper is quick and well-documented, with minimal B-school-speak.  EMM

Lilley on the Relative Advantages of Political and Judicial Resolution of Executive Privilege Disputes

Stephen Lilley has recently posted a working draft of his article entitled "Suboptimal Executive Privilege" on ssrn. 

 

Abstract:    

Calls for political, rather than judicial, resolution of executive privilege disputes between the political branches of the federal government have become routine. This preference, however, lacks a theoretical basis in the existing literature even though executive privilege disputes give practical definition to the interaction of presidential secrecy and congressional authority. This Article offers the first comprehensive theoretical account and comparison of political and judicial resolution of executive privilege disputes between the political branches. It explains that both methods for resolving these executive privilege disputes are likely to produce constitutionally acceptable, but suboptimal, outcomes. Political resolution of these disputes is constitutionally valid but leaves room for improvement. Judicial involvement in executive privilege disputes between the political branches threatens the legitimacy of courts and their judgments. This and other concerns deprive courts of a convincing argument that they provide outcomes to executive privilege disputes that are constitutionally preferable to those reached by the political process. Courts conceivably could address those legitimacy concerns by sitting as courts of constitutional equity or doctrinalizing their discretion to entertain executive privilege disputes between the political branches. Such dramatic changes appear unwise and highly unlikely. A nondoctrinalized prudential discretion to entertain select executive privilege disputes between the branches appears likely to endure. This does not preclude all improvement, however. Courts can change their doctrine to encourage more productive negotiations between the political branches and thus improve upon suboptimal outcomes.

KP

The importance of being earnest -

- in watching for changes in laws and regulations is demonstrated in U.S. ex rel. Kosenske v. Carlisle HMA Inc., 554 F.3d 88 (3rd Cir. 2009), analyzed in "Third Circuit Rules Outdated Agreements May Lead to Stark Law Violations", a Health Law Client Alert prepared by Drinker Biddle and Reath LLP.  From the introduction:

A decision by the U.S. Circuit Court of Appeals for the Third Circuit finding that a long-standing agreement between a physician group and a hospital was insufficient to protect them from Stark Law violations underscores the need for providers to review and, where necessary, update the written contracts and fair market value determinations used to document compliance with the personal services exception to the federal Ethics in Patient Referrals Act of 1989 (the Stark Law) and the safe harbor to the Medicare and Medicaid Anti-Kickback Statute (the Anti-Kickback Statute).  U.S. ex rel. Kosenske v. Carlisle HMA Inc. – noteworthy because of the limited number of court rulings in this area – highlights the risks where operating relationships under long-standing service agreements between hospitals and physician practice groups have changed over time and no longer resemble the circumstances of the original agreements (e.g., hospital ownership, new facility development, scope of services). 

Clients don't like paying legal fees, especially when they don't see a direct result of the attorney's work.  However, it is for the client's own protection that attorneys must convince them that monitoring statutes and regulations with a direct impact on their business is important for their survival.  EMM

Beerman on increasing Congressional influence on administrative law

New on SSRN:  Jack Beerman (Boston Univ.), "The Turn Toward Congress in Administrative Law".  Abstract:    

Congress engages in an extensive and ever-increasing level of oversight of the activities of the Executive Branch. The level of observation and supervision is high enough that it is appropriate to hold Congress responsible for a very high proportion of the activities of the Executive Branch. In recent years, so much attention has been paid to assertions of power by the President and the Supreme Court, Congress has been somewhat neglected. This paper analyzes the power of Congress mainly through an administrative law lens with the aim of pointing out ways in which Congress has remained or become responsible for administrative law. Congress has become more responsible in recent years, not because of any improvements or reforms it has undertaken, but rather because developments in administrative law have placed responsibility on Congress. Some of the most important developments in administrative law in recent years can be traced to reinforcement, by federal courts reviewing administrative action, of Congress's primacy as the most powerful policymaking branch of the federal government. I do not mean to argue that the law has consistently moved in the direction of congressional primacy. By and large, the Supreme Court has promoted its own agenda to the exclusion of deference to anyone else, including Congress, the Executive Branch and all branches of state governments. However, in some areas of administrative law, the Court seems to have turned toward Congress and away from the Executive Branch. As compared with policymaking in the Judicial and Executive Branches, Congress is the most democratic and legitimate of the three federal branches, including even the independent agencies which are supposed to be shielded from politics but instead may be the most political of all. In fact, a key argument of this paper is that recent developments in administrative law exhibit a return to congressional primacy both in matters of interpretation and matters of policy, and that this is a good thing in terms of accountability and legitimacy.

Thanks to Larry Solum's Legal Theory Blog for the pointer.  EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Centner, Terence J.  Courts and the EPA interpret NPDES general permit requirements for CAFOs.  38 Envtl. L. 1215-1238 (2008). [L]|[W]
• Centner, Terence J.  Regulating the use of non-therapeutic antibiotics in food animals.  21 Geo. Int'l Envtl. L. Rev. 1-36 (2008). [L]|[W]
• Fenster, Mark.  Designing transparency:  the 9/11 Commission and institutional form.  65 Wash. & Lee L. Rev. 1239-1321 (2008). [L]|[W]
• Gaba, Jeffrey M.  Rethinking recycling.  38 Envtl. L. 1053-1109 (2008). [L]|[W]
• Keller, Scott A.  How courts can protect state autonomy from federal administrative encroachment.  82 S. Cal. L. Rev. 45-95 (2008). [L]|[W]
• Paruch, Patricia.  Government law.  54 Wayne L. Rev. 305-349 (2008). [L]|[W]
• Rathbun, Daniel P.  Note.  Irrelevant oversight:  "presidential administration" from the standpoint of arbitrary and capricious review. 107 Mich. L. Rev. 643-674 (2009). [L]|[W]
• Saul, James N.  Comment.  Overly restrictive administrative records and the frustration of judicial review.  38 Envtl. L. 1301-1330 (2008). [L]|[W]
• Staple, Gregory C.  Legislating carbon caps:  five unresolved issues for the new Administration.  39 Envtl. L. Rep. News & Analysis 10051-10060 (2009). [L]|[W]
• Wilson, Martin M. and Jennifer A. Blackburn.  Administrative law.  60 Mercer L. Rev. 1-20 (2008). [L]|[W]
• Enforcement of the Clean Water Act, The Federalist Society for Law and Public Policy.  Steven J. Eagle, moderator; Jonathan H. Adler, M. Reed Hopper, Patrick A. Parenteau and Robert V. Percival, panelists.  11 U. Denv. Water L. Rev. 137-171 (2007). [L]|[W]

EMM

Weiser on the study of regulatory organizations

New on SSRN: "Institutional Design, FCC Reform, and the Hidden Side of the Administrative State" by Phil Weiser (Colorado).  Abstract:

Legal scholars have long recognized the importance of the modern administrative state, focusing intently both on the substance of regulatory law and the process of administrative law. Neither focus, however, recognizes the importance of institutional design and institutional processes as determinants of the nature and shape of administrative regulation. The era of neglect towards institutional analysis by both scholars and policymakers may well be on its last legs, as it is increasingly clear that the institutional processes used by regulatory agencies - including when to act by rulemaking as opposed to by adjudication, how to engage the public, and how to collect and share data relevant to policymaking - greatly shape the substantive outcomes of important regulatory proceedings. The emerging question will be how best to study institutional process and create a new direction for administrative law scholarship.

The Federal Communications Commission (FCC) represents an ideal case study to underscore the importance of institutional analysis. Over the last fifty years, the agency has confronted a regular set of criticisms about its reliance on ex parte communications, its lack of data-driven decision-making, and its tendency to act in an ad hoc manner. Nonetheless, the importance of reforming the agency has not risen to the top of the scholarly or public agenda - until recently. In the wake of a series of high-profile criticisms of how the agency operates, the question is now finally shifting to how - and not whether - to reform that agency's institutional processes. This Article highlights the importance of asking that question, explaining how the FCC operates in dysfunctional ways, how it can be reformed, and why this case study highlights an important new frontier for administrative law scholarship.

The author uses the FCC as an example, but his conclusions are applicable across the regulatory spectrum.  Personally, I see institutional design as political science vice legal scholarship, but YMMV. It certainly needs to be done.  EMM

Full employment for administrative lawyers

I confess to a residual interest in ensuring the full employment of lawyers interested in administrative law, though I am now retired from active practice.  John Chierichella and David Gallacher have a great summary of the oversight provisions of the Stimulus Package on Sheppard Mullin's Government Contracts Blog:  "Stimulation Has Its Price - The Audit and Oversight Provisions of The 2009 Stimulus Bill Are Unlike Anything Most Funding Recipients Have Ever Seen".

[R]ecipients of the funds will almost assuredly find themselves downrange from one of the most rigorous oversight regimes ever enacted. Companies, and even States and localities – should familiarize themselves with the full terms of the Faustian bargain they will be striking. ... [N]on-traditional Government contractors (who may well be the bulk of companies pursuing the new Stimulus money) would be well advised to review the Stimulus Bill carefully before seeking financial stimulation, because – to quote the legendary Al Jolson – "You ain't seen nothing yet." Even traditional Government contractors – particularly those operating outside of the classified and Department of Homeland Security arenas – may find the panoply of oversight mechanisms to be startling ... If you are one of the many, many companies contemplating the chase for Stimulus Dollars, you are well advised to remember the good Dr. Faustus – every deal that we strike, every agreement into which we enter, comes at a price. You will live in a proverbial fishbowl. Be prepared – understand the risks, understand the burden you undertake to withstand that scrutiny, and put in place a system of internal controls that you can defend without qualification when the IG, the GAO, the RAT Board, casual viewers of your company website, and the Fourth Estate – come knocking on your door to find out where that money went, and why.

Read the post for the details, and I'm sure you will agree that any sane applicant for stimulus funds will run, not walk, to its favorite administrative lawyer to translate these requirements (and the inevitable regulations promulgated thereunder) into operational English.  EMM

THeory: Vermeule on the limits of administrative law

New on the Harvard Law Review web site:  Adrian Vermeule (Harvard), "Our Schmittian administrative law".  Abstract:

Our administrative law contains, built right into its structure, a series of legal "black holes" and "grey holes" — domains in which statutes, judicial decisions and institutional practice either explicitly or implicitly exempt the executive from legal constraints. Legal black holes and grey holes are best understood by drawing upon the thought of Carl Schmitt, in particular his account of the relationship between legality and emergencies. In this sense, American administrative law is Schmittian. Moreover, it is inevitably so. Extending legality to eliminate these black and grey holes is impracticable; any aspiration to eliminate the Schmittian elements of our administrative law is utopian.

From footnote 7:

By "administrative law," I mean the administrative law of the federal government of the United States.  I focus on the post-9/11 period and on emergencies implicating national security, rather than on economic emergencies or on emergencies arising from natural disasters or environmental change.  (By "emergencies," then, I mean security emergencies unless otherwise specified.)  Many of the points I will make apply in those other settings as well, although some do not.

I suggest that this fascinating paper is not so much about administrative law as about the boundaries of administrative law, identifying when the concepts of administrative law simply do not apply to executive action.  At the ultimate extreme we have the rifle platoon leader in combat screaming "Follow me!"  Nobody expects the Administrative Procedure Act to apply there, even though lives are at stake (it doesn't, by its own terms).  Under these circumstances, nobody will ask to whom must notice be given, how far in advance, who has standing to demand judicial review, is a hearing after the decision adequate process?  What Professor Vermeule examines is where to draw the line, if that is possible, between routine executive action where administrative law writ large is appropriate and emergencies where something else is needed. Further, he looks at what that something else really is.  This paper clarifies these questions and concludes that there are no real answers possible.  EMM

Constitutionally protected property interest?

On The Volokh Conspiracy, Jonathan Adler (Case Western Reserve) suggests that Sisay v. Smith (6th Circuit, Feb. 12, 2009) would make a good Admin Law hypo.

Last week, in Sisay v. Smith, a divided panel of the U.S. Court of Appeals for the Sixth Circuit overturned a district court order enjoining the Cleveland Hopkins International Airport from enforcing new rules granting select taxicab companies the exclusive right to pickup passengers at the airport. Several small taxicab companies had challenged the rules on due process and other grounds. The panel divided on whether they had demonstrated a sufficient likelihood of success on their due process claim, and specifically over whether the plaintiffs could show they had been deprived of a constitutionally protected property interest when they were denied the right to pick up passengers from the airport.

There is an interesting debate between the majority and minority opinions as to whether denying the plaintiffs the right to pick up passengers at the airport would make their hack licenses worthless, which both sides agree would create a protected property interest.  The majority opinion has a good discussion of when expectations become property interests, an issue that arises in many "business license" cases.  Other issues include whether, if "process" is "due", the City's actions were adequate, and an equal protection claim.  EMM

Ultra vires

From the Energy Legal Blog published by Bracewell & Giuliani LLP: "FERC Not Empowered to Overrule a State Denial of an Application to Site and Construct Electric Transmission", by Maria Urbina.    The 4th Circuit, in Piedmont Environmental Council v. FERC, examined the new Section 216 that was added to the Federal Power Act in 2005.

That section created two new federal powers. First ... Second, for the first time in the history of federal regulation of the power industry, it conferred on FERC "backstop" federal authority to permit within a designated NIET corridor the siting and construction of new or modified interstate electric transmission lines, but only in circumstances detailed in the new section 216. One such circumstance arises when FERC finds that a state commission or other state permitting authority "has withheld approval for more than 1 year after the filing of an application seeking approval" for a proposed transmission line. Contrary to a majority of FERC commissioners, the court majority concluded that "withheld for more than one year" does not comprise scenarios where a state denies a construction and siting application consistent with state law within one year from the filing of the application. Agreeing with FERC Commissioner Suedeen Kelly, who dissented from the agency's 2006 rulemaking, interpreting the statutory phrase "withheld for more than one year" to encompass a timely denial is a "nonsensical" and therefore impermissible reading.

EMM

Whose ox is gored by the "unitary executive" theory now?

Perhaps our readers can help answer the question posed by Steve Schwinn (John Marshall - Chicago) on the
Constitutional Law Prof Blog: "Where Have All the Unitary Executives Gone?"  As he points out, "With all the attention the theory received in the Bush administration, academic and otherwise, adherents and detractors alike should hope that it's more than just a passing political gambit so that we can debate it on its merits."

<rant>Having started my legal career in North Carolina, where everyone is elected and the governor controls only half of the executive branch, I see "unitary executive" as more of a rhetorical device than a real issue.  As is pointed out in "Government Practice and Presidential Direction: Lessons from the Antebellum Republic" by Jerry Mashaw (Yale), Congress has created agencies not wholly under the President's control since the beginning of the Republic.  Prooftexting the Constitution is not particularly useful.</rant> EMM

OMB Releases Initial Guidance on Stimulus Bill

Today the Office of Management and Budget issued initial guidance for managing stimulus funds.  The guidance appears in a sixty-two page memorandum found here. 

KP

The Office of Legal Counsel

The Justice Department's Office of Legal Counsel (OLC) has considerable influence on the practice of federal administrative law, because its opinions (called Attorney General Opinions or Opinions of the Attorney General) are binding on the entire executive branch of the government.  Jack Balkin (Yale) discusses the OLC on Balkinization in an excellent essay, "Is the Office of Legal Counsel Constitutional? Some notes on the American Conseil Constitutionnel". 

OLC opinions can be vital in administrative proceedings at two stages.  While a matter is still before an agency, a relevant AG opinion is a heck of a hammer (although I have seen an ALJ disregard one).  The agency's position is fixed, and even if the opinion is distasteful the agency is not supposed to argue against it.  The respondent, on the other hand, is not so restricted.  The second stage is during judicial review.  In the absence of judicial authority to the contrary an AG opinion can be decisive.  Most states have similar arrangements, but your mileage may vary.

While Professor Balkin's essay goes beyond practice and into theory - the idea that the OLC has quasi-judicial functions - it is a concise description of the problematic power of this office.  EMM

Requiring commercial speech - preemption and the First Amendment

The Consumer Class Actions and Mass Torts blog has a detailed analysis of yesterday's Second Circuit decision in New York State Restaurant Association v. New York City Board of Health, No. 08-1892-cv (2d Cir. Feb. 17, 2009), "Second Circuit Rejects Preemption and First Amendment Challenges to New York City's Rule Requiring Chain Restaurants to Disclose Calorie Counts on Menus".  The preemption issue - whether New York City's regulation was preempted by the federal Nutrition Labeling and Education Act of 1990 - turned on complex statutory interpretation. 

Ultimately, the court sided with the FDA, concluding that a statement is "nutrition information" if it is of the type generally required or permitted by Section 343(q).  Calorie counts fall squarely within that type of "Nutrition Facts," and thus -- for restaurants -- are a fair subject for local regulation, according to the court.

On the First Amendment issue - whether required rather than prohibited commercial speech required intermediate scrutiny (whether there are less speech-restrictive alternatives to achieve the state's legitimate governmental interest) vice rational basis review - the Court found that intermediate scrutiny "applies where speech is restricted, the court explained, while here the City is merely forcing disclosure of purely factual and uncontroversial information" and used the rational basis standard. EMM

Rodriguez and Weingast on the inevitability of administrative law

This afternoon, Daniel B. Rodriguez (Texas) presents "Is Administrative Law Inevitable?", a paper he is writing with Barry R. Weingast (Hoover Institution), at Northwestern University's Law and Political Economy Colloquium.  The opening paragraph:

If we lacked an administrative law would we and should we devise one?  This is the question at the heart of our essay.  While a large body of legal scholarship wrangles over questions of how and why certain doctrines are developed to control agency decisionmaking, limit bureaucratic discretion, and improve the processes of governance, the question of how administrative law writ large fits into the fabric of regulatory politics is, if considered at all, takes a back seat to the practical matters of, say, administrative procedure and standards of judicial review.

The authors caution that "[t]his is a very rough draft; please do not quote or circulate without permission; comments welcome".  EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Brownfield, David.  Comment.  Reform of U.S. chemicals regulations may not be out of REACH.  21 Pac. McGeorge Global Bus. & Dev. L.J. 223-249 (2008). [L]|[W]
• Clark, Brian D.  Note.  Will viral hemorrhagic septicemia (VHS) be the straw that breaks the camel's back?  The balkanization of Great Lakes ballast water law.  18 Minn. J. Int'l L. 227-264 (2009). [L]|[W]
• Crowder, Patience A.  "Ain't no sunshine":  examining informality and state open meetings acts as the anti-public norm in inner-city redevelopment deal making.  18 J. Affordable Housing & Commun. Dev. L. 113- 142 (2008). [L]|[W]
• Dillard, J. Amy.  Sloppy Joe, slop, sloppy Joe:  how USDA commodities dumping ruined the National School Lunch Program.  87 Or. L. Rev. 221-257 (2008). [L]|[W]
• Glassman, Amy.  Project-based voucher reforms will facilitate development of affordable units but should be taken further.  18 J. Affordable Housing & Commun. Dev. L. 71-80 (2008). [L]|[W]
• Heyward, Carole O.  HOPE for homeowners:  too little, too late.  18 J. Affordable Housing & Commun. Dev. L. 27-45 (2008). [L]|[W]
• Jonna, Paul M.  Comment.  In search of market discipline:  the case for indirect hedge fund regulation.  45 San Diego L. Rev. 989-1036 (2008). [L]|[W]
• Robbins, Elizabeth.  Comment.  Cruising down the HOV lane:  federal & local incentives steer drivers to purchase hybrid vehicles.  20 Vill. Envtl. L.J. 75-98 (2009). [L]|[W]
• Roberts, Jody A.  Collision course?  Science, law, and regulation in the emerging science of low dose toxicity.  20 Vill. Envtl. L.J. 1-21 (2009). [L]|[W]
• Schammo, Pierre.  Regulating transatlantic stock exchanges.  57 Int'l & Comp. L.Q. 827-862 (2008). [L]|[W]
• Siglin, Brett D.  Obstacles encountered when combining FHA and other HUD programs with tax credits.  18 J. Affordable Housing & Commun. Dev. L. 81- 112 (2008). [L]|[W]
• Soroka, Kathie.  A brief analysis of the National Housing Trust Fund.  18 J. Affordable Housing & Commun. Dev. L. 13-26 (2008). [L]|[W]
• [Climate Change.]  Articles by Edward Cameron, Daniel A. Farber, Tom Anthansiou, David Takacs, Andrew Greene, Richenda Connell, Alan Miller, Vladimir Stenek, Alberto Monti, Peter Hayes and Lara Whitely Binder; photographs by Robyn Carliss, Fred Jay and Angel Muzzin.  15 Hastings W.- Nw. J. Envtl. L. & Pol'y 1-195 (2009). [L]|[W]
• Cameron, Edward.  The human dimension of global climate change.  15 Hastings W.-Nw. J. Envtl. L. & Pol'y 1-14 (2009). [L]|[W]
• Farber, Daniel A.  Climate justice and the China fallacy.  15 Hastings W.-Nw. J. Envtl. L. & Pol'y 15-20 (2009). [L]|[W]
• Carliss, Robyn.  Sediment streaked icebergs floating in Jokulsarlon, Iceland.  [Photograph.]  15 Hastings W.-Nw. J. Envtl. L. & Pol'y 21 (2009). [L]|[W]
• Athanasiou, Tom.  After the denial.  15 Hastings W.-Nw. J. Envtl. L. & Pol'y 23-35 (2009). [L]|[W]
• Takacs, David.  Carbon into gold:  forest carbon offsets, climate change adaptation, and international law.  15 Hastings W.-Nw. J. Envtl. L. & Pol'y 39-87 (2009). [L]|[W]
• Greene, Andrew.  Carbon intensity standards:  a distraction and a danger to real action on climate change.  15 Hastings W.-Nw. J. Envtl. L. & Pol'y 91-130 (2009). [L]|[W]
• Connell, Richenda, Alan Miller and Vladimir Stenek.  Evaluating the private sector perspective on the financial risks of climate change.  15 Hastings W.-Nw. J. Envtl. L. & Pol'y 133-148 (2009). [L]|[W]
• Monti, Alberto.  Climate change and weather-related disasters:  what role for insurance, reinsurance and financial sectors?  15 Hastings W.- Nw. J. Envtl. L. & Pol'y 151-172 (2009). [L]|[W]
• Hayes, Peter.  Resilience as emergent behavior.  15 Hastings W.-Nw. J. Envtl. L. & Pol'y 175-180 (2009). [L]|[W]
• Binder, Lara Whitely.  Preparing for climate change in the U.S. Pacific Northwest.  15 Hastings W.-Nw. J. Envtl. L. & Pol'y 183-195 (2009). [L]|[W]
• Symposium.  Creating a Legal Framework for Sustainable Energy. Introduction by David G. Victor; articles by Antoine Halff, Rep. Cliff Stearns, Robert W. Hahn, Marilyn A. Brown, Sharon (Jess) Chandler and Steven Ferrey; note by David Schwartz.  19 Stan. L. & Pol'y Rev. 395-573 (2008). [L]|[W]
  • Victor, David G.  Introduction.  19 Stan. L. & Pol'y Rev. 395-401 (2008). [L]|[W]
  • Halff, Antoine.  Energy nationalism, consumer style:  how the quest for energy independence undermines U.S. ethanol policy and energy security.  19 Stan. L. & Pol'y Rev. 402-425 (2008). [L]|[W]
  • Stearns, Rep. Cliff.  U.S. coal reserves key to national and energy security.  19 Stan. L. & Pol'y Rev. 426-433 (2008). [L]|[W]
  • Hahn, Robert W.  Ethanol:  law, economics, and politics.  19 Stan. L. & Pol'y Rev. 434-471 (2008). [L]|[W]
  • Brown, Marilyn A. and Sharon (Jess) Chandler.  Governing confusion:  how statutes, fiscal policy, and regulations impede clean energy technologies.  19 Stan. L. & Pol'y Rev. 472-509 (2008). [L]|[W]
  • Ferrey, Steven.  Power paradox:  the algorithm of carbon and international development.  19 Stan. L. & Pol'y Rev. 510-549 (2008). [L]|[W]
  • Schwartz, David.  Note.  The natural gas industry:  lessons for the future of the carbon dioxide capture and storage industry.  19 Stan. L. & Pol'y Rev. 550-573 (2008). [L]|[W]

EMM

Adler on regulatory takings

Jonathan Adler (Case Western Reserve) discusses Chicago, Burlington & Quincy Railroad Co. v. Chicago in "Regulatory Takings and the 14th Amendment" on The Volokh Conspiracy.  EMM

Buy American

Usually I don't blog about substantive administrative law subjects, but David S. Gallacher has posted an exhaustive list of the various "Buy American" laws on Sheppard Mullin's Government Contracts Blog, "Free Trade Agreements, "Made In America," and The 2009 Stimulus Package - Country of Origin Requirements Remain an Elusive Compliance Obligation".  He explains and has links to both the general U.S. laws on the subject and the various free trade agreements that have an impact.  His conclusions:

Clearly, especially in connection with the Stimulus Package, the issues related to "Buy American" or "country of origin" requirements are not only timely but sure to come up again in the near future.  The Senate amendments to H.R. 1 made clear that the U.S. must honor its obligations under the various FTAs, and this sentiment has been echoed by President Obama.  As recent media coverage of the Stimulus Bill has demonstrated, the interplay between "Buy America" and our FTA obligations is a difficult issue for the American public to understand, evoking strong emotions.  Even more so, the interplay between "Buy America" and the various FTAs presents complicated legal questions that all companies selling to the Government (either now or in the future, whether as a prime- or a sub-contractor) must adequately address.  Failure to carefully consider "country of origin" obligations under the TAA and other statutes carries significant risks and potentially significant costs.

Presently, if a contract for a covered product or service, is at or above the revised TAA thresholds, then the TAA will likely apply and products or services from designated countries must be treated equally with domestic products.  However, if the source of the product is not from a "designated country" – "Made in China," "Made in Taiwan," or "Made in Malaysia," for example – then the product does not comply with the TAA, and the Government is prohibited from purchasing under the TAA.  Companies should be aware whether the TAA or other domestic source restrictions apply to their contracts, and they should also be aware of the countries of origin of products being delivered to the United States.  Remember that there is no exemption under the TAA (or the Stimulus Package, for that matter) for commercial companies, and commercial sellers are under the same obligations under the TAA as other non-commercial vendors.

This sort of summary can make life much easier for practitioners.  EMM

Negotiated rulemaking

In negotiated rulemaking an agency brings together representatives of various interests to develop consensus rules.  This is intended to eliminate any significant objections to the rules when they are officially proposed.  The difficulties with this process are a lack of transparency, regulation by interest rather than by principle, and what I call the Inverse Golden Rule of Regulation:  Those who make the rules get the gold.  For an example of negotiated rulemaking underway now, see the Hogan & Hartson Education Investors Update by Stephanie J. Gold, "Education Department Continues HEOA Rulemaking Process and Publishes HEOA Summary":

This update describes two recent Higher Education Opportunity Act (HEOA) developments. On December 31, 2008, the U.S. Department of Education published a notice of establishment of negotiated rulemaking committees to develop regulations related to HEOA amendments to Title IV of the Higher Education Act of 1965, as amended. Title IV pertains to the federal student financial aid programs. ...

... [T]he committees will formulate regulations to implement HEOA amendments to Title IV and to address certain other matters related to accreditation that were identified during negotiated rulemaking in 2007, but were not addressed in published regulations. ...

The notice explains the department will select participants for committees that represent interests that the proposed regulations will affect significantly. HEOA includes a new requirement that individuals selected must have demonstrated expertise or experience in relevant subjects under negotiation. Committees may create subgroups that would involve additional individuals who are not committee members. Committee meetings will be public. 

The requirement that meetings be public is an improvement over some previous episodes of regotiated rulemaking, but the question remains whether there will be enough journalistic interest in the nitty-gritty of the committee meetings to keep unrepresented interests informed.  The ultimate beneficiaries of the regulations - students and their parents - may not be engaged in the process.  There will be opportunities for mutual back-scratching and other politics that may lead to a suboptimal regulatory scheme.  This is not to say that conventional rulemaking can't lead to suboptimal results for some of the same reasons, among others.  However, negotiated rulemaking can make it difficult to focus a regulatory scheme on its statutory objective.

Thanks to Lexology for the pointer to the Hogan & Hartson Update.  EMM