Thursday, May 26, 2011

Administrative Law, Politics, and Energy

On the Administrative Law Prof Blog, Ted McClure (Phoenix) recently made an argument in response to one of my earlier posts about the political nature of Yucca Mountain.  I had noted that "everything in administrative law is political" -- one of seven "aphorisms of administrative law" I use to try to convey the full extent of the field to my students.  McClure contends that my assertion is both too broad and too disconnected from what administrative law practitioners do on a daily basis:

I suggest that Prof. Davies is talking about political science rather than law. Had he said "Everything in administrative law can be political." I would have agreed. . . .  But [politics] often [do not intrude in decisionmaking], especially at the level of involvement at which most of our alumni will be engaged. . . .  It is good for people, especially lawyers, to understand the politics and policies of government. But that's not what we have to teach in law school, because that's not what the clients of our alumni are going to need.

McClure has a point.  It would be more precise to say that everything in administrative law "can be" political, because there are certainly some things that are not.  By the same token, it would be even more accurate to say that everything in "the practice of administrative law" can be political, because, as McClure rightly notes, administrative law practice more often than not deals with agency procedures, and procedure tends to be less political than substantive policy decisions.  We lawyers parse words for a living.  We need to be careful how we do so.  Here, the truth is buried in the context; it matters what kind of administrative law we are talking about: the practice, the procedure, the substance adopted.

Most administrative law classes, including mine, focus on procedure, and rightly so.  Substantive "administrative law" is left to other doctrinal courses: employment law, environmental law, health law, immigration law, tax law, and so on.  Still, procedure and substance are intertwined in life, so just as it would be inappropriate to excise the procedure entirely from doctrinal courses, some substance must come into procedure.

This is the chief point of my aphorism.  One cannot comprehend administrative law without understanding the politics that underlie it.  This is just as true for the pragmatic practicing administrative lawyer as it is for the suppositional administrative law student.  Does the average administrative lawyer help craft agency policy on a daily basis?  No.  But can the same lawyer effectively advise her client without grasping the current administration's agenda, what policies that administration is sympathetic to and which it is not, and who holds power within the agency's four walls?  Also no.  The necessity of a legal brief one day may be the need for bureaucratic gear greasing the next.

As I have alluded to in several prior posts, this may not be truer anywhere than in energy law.  Beyond Yucca, take just a few recent examples:

  • Democrats' emphasis on high gas prices as a way to zero in on tax credits for oil companies, when the two are not linked

  • Republicans' "drill, baby, drill" counter-punch of claiming a need for increased domestic crude production due to today's nearly $4/gallon gas prices when, again, the two are unrelated

  • Standing congressional calls for national energy security, yet a failure for over a decade to adopt a national renewable energy standard, which would by definition enhance U.S. independence

  • The tussle in Congress over the provision in the Energy Independence and Security Act of 2007 that phases out production of inefficient (but not more efficient) incandescent light bulbs, despite industry's support for keeping the provision in place

These examples all come from the legislative, rather than executive, branch, but one need not look hard to find them in all three segments of our government.

Any serious student of energy law -- or administrative law -- would do well to note that.  They would also do well, as Ted McClure aptly observes, to understand that any policy Congress puts in place ultimately will be implemented by an agency, and the agency will be bound by numerous laws and procedures.

Politics matter.  Procedure does too.

-Lincoln Davies

http://lawprofessors.typepad.com/environmental_law/2011/05/administrative-law-energy-and-politics.html

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Comments

I think your comment is tilted toward the perspective of a rulemaking lawyer.
I think his comment is titled toward the perspective of an administrative enforcement lawyer.

Administrative enforcement lawyers have greater skill transferability from one agency to a different agency; overall, I think their perspective is perhaps less attuned to substantive law and the animating political controversies that shape rulemaking, stall rulemaking, and push to invalidate rulemaking. Major rulemaking battles are often bigger, i.e. have more at stake, than legislative battles. Understanding stakeholders and stakeholder strategy is the crux of Administrative law from the rulemaking attorney perspective. Were it not for administrative law these battles would be exhaustively fought and lobbied over in Congress, not in the DC Circuit.

Most law students don't have designs on becoming a generic administrative law practitioner. They want to understand the subject from predefined areas of background interest...and, I think unavoidably, their attention span for particular cases will vary based on the underlying controversy (e.g., energy, environment, social security, etc.). Or maybe that was just my problem. And that's not to deride Admin law, because there's an important point about tool-building and certain principles from the major cases.

Posted by: Rulemaking Lawyer | May 26, 2011 4:58:09 PM

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