read instructions carefully
The three readings below reflect some of the basic and current characteristics of the federal administrative context.
The first, “The Organization of the Bureaucracy”, discusses the variety of types of public agencies that exist. Note that most federal (and generally state) government bureaus or agencies are created through an “organic act” that provides them distinct powers and authority, and often distinct procedural requirements for operations. In addition to organic acts, “enabling acts” can provide agencies authority or procedural requirements for specific programs assigned to that entity. So the Environmental Protection Agency(EPA) actually has powers given to it by a wide range of enabling laws, including the Clean Water Act and the Clean Air Act.
The second reading by Alina Selyukh, demonstrates that Congress and the President can alter the powers and responsibilities of agencies anytime by passing legislation amending existing legislation or rules. Although the president can influence how laws are administered, their appointees and administrative orders cannot legally ignore or act contrary to existing legislation. But if Congress and the president agree that they want to prevent (or force) agency action, they simply need to pass a bill doing so. In this case, Congress and President Trump overturned an imminent rule by the Federal Communications Commission(FCC) that would have prevented Internet Service Providers(ISPs, such as Comcast or Verizon) from selling user data.
The Trish McCubbin article discusses the concepts of preemption and waivers. If Congress is acting within its constitutional power, such as regulating commerce, then it can “preempt” the policy field and prevent states from taking any actions that interfere with federal purposes. For both pragmatic and political reasons, the federal government often chooses either to broadly allow states to also act in the policy field (“partial preemption”). Congress or federal agencies can also explicitly enable states to create policies that vary from the general federal laws or regulations. Exceptions allowed to the states are called “waivers”. Waivers are common in both regulations and in grant programs.
California had a very long-standing waiver to regulate air pollution by its own much more rigorous, standards due to the intensity of air pollution and the political power of that state. The Trump administration’s efforts to reduce regulations includes an explicit effort to undue California’s waivers under the Clean Air Act, opening the way to less stringent auto emission laws in California. This fits the Trump administration’s emphasis on economic growth over other social values, and the fact California would never vote for Trump anyway. (The latter is Henkels’s observation, but not unique to him). But the EPA cannot just lift a waiver if it had a long term existence that the affected party has planned on (the :”reliance” concept), or if the withdrawal of the waiver does not have a “reasonable” justification in light of the EPA’s responsibilities under the CAA.
(Henkels, March 24, 2020)
The Organization of the Bureaucracy
|
US History.org. < http://www.ushistory.org/gov/8b.asp |
> (Wednesday, April 05, 2017) |
Even the experts can't agree on the total number of federal government agencies, commissions, and departments.
Most estimates suggest there are probably more than 2,000 of these. They each have an area of specialization — some much broader than others — but their duties often overlap, making administration more difficult. To complicate things even more, many agencies have counterparts at the state and local level. Its size, complexity, and overlapping responsibilities leave the federal bureaucracy open to constant attempts to reorganize and streamline.
Congress has the power to create, organize, and disband all federal agencies. Most of them are under the control of the President, although few of them actually have direct contact with the White House. So, the bureaucracy has two masters — Congress and the President. The bureaucracy generally falls into four broad types: Cabinet departments, government corporations, independent agencies, and regulatory commissions
Cabinet departments
Department of State
Treasury Department
Department of Defense
Department of Justice
Department of the Interior
Department of Agriculture
Department of Commerce
Department of Labor
Department of Transportation
Department of Housing and Urban Development
Department of Health and Human Services
Department of Energy
Department of Education
Department of Veterans Affairs
Department of Homeland Security
The Cabinet Departments
The 15 Cabinet departments are each headed by a Secretary who sits on the President's Cabinet. The exception is the Justice Department, which is headed by the Attorney General, who is also a member of the President's Cabinet. The Secretaries are responsible for directing the department's policy and for overseeing its operation. Cabinet secretaries are usually torn between their responsibilities as presidential advisers and heads of their departments.
Each has a special area of policy, although their responsibilities are still very broad. The organization of each is quite complex, but they have some things in common. All Secretaries have a Deputy or Undersecretary, as well as a host of Assistant Secretaries, who all direct major programs within the department.
Most departments are divided into bureaus, divisions, and sections. For example, the FBI lies within the domain of the Justice Department, and the Secret Service is currently within the Treasury Departmeny agency, but soon to be moved under the auspices of the Department of Homeland Security .
Government Corporations
Government corporations do not belong to any department — they stand on their own. Probably the best-known government corporations are the United States Postal Service and Amtrak. They are different from other agencies in that they are businesses created by Congress, and they charge fees for their services. Like any other business, government corporations have private competition — such as Federal Express and United Parcel Service — and sometimes state competition — such as the New Jersey Transit Authority.
Independent Agencies
Independent agencies closely resemble Cabinet departments, but they are smaller and less complex. Generally, they have narrower areas of responsibility than do Cabinet departments. Most of these agencies are not free from presidential control and are independent only in the sense that they are not part of a department.
Congress creates them as separate agencies for many reasons, practical as well as symbolic. For example, when the National Aeronautics and Space Administration (NASA) was established, many members of Congress assumed that it would be a part of the Department of Defense. However, it is an independent agency because the space program has many other purposes than the defense of the nation.
Regulatory Agencies
These agencies regulate important parts of the economy, making rules for large industries and businesses that affect the interests of the public. Because regulatory commissions are "watchdogs" that by their very nature need to operate independently, they are not part of a department, and the President does not directly control most of them. Each commission has from 5 to 11 members appointed by the President, but the President cannot remove them for the length of their terms in office.
Examples of these commissions are the Securities and Exchange Commission, which regulates the stock market, brokers, and investment practices. Another well-known commission is the Federal Reserve Board that governs the nation's monetary policy. The Environmental Protection Agency serves as a guardian over the nation's environment, making and enforcing standards for the industrial and commercial sectors.
With over 2,000 different agencies, the federal bureaucracy is almost certain to run into problems with organization, overlapping responsibilities, and efficiency. Almost every recent President has come into office determined to refashion and trim the bureaucracy. However, none has been able to make more than minor adjustments. Well-established agencies have lives of their own, and are difficult to change. Besides, the country has large, complex, needs requiring special attention. A large bureaucracy is a part of the government's attempt to meet those needs.
--------------------------------------------------
Examples of Congress using the "Congressional Regulatory Review act to undo some key rules adopted by federal agencies in last months of Obama administration. This power had only been used once before in history. MH
Alina Selyukh. "Congress Overturns Internet Privacy Regulation" npr.org (February 24, 2017)
Congress on Tuesday rolled back Internet privacy regulations established under the Obama administration.
The House of Representatives has gone along with the Senate and voted 215-205 to overturn a yet-to-take-effect regulation that would have required Internet service providers — like Comcast, Verizon and Charter — to get consumers' permission before selling their data.
President Trump is expected to sign the rollback, according to a White House statement.
The measure is a victory for the ISPs, which have argued that the regulation would put them at a disadvantage compared with so-called edge providers, like Google and Facebook. Those companies are regulated by the Federal Trade Commission and face less stringent requirements. Congress' approval is a loss for privacy advocates, who fought for the regulation, passed in October of last year by the then-Democratic majority on the Federal Communications Commission.
ISPs collect huge amounts of data on the websites people visit, including medical, financial and other personal information. The FCC regulation would have required ISPs to ask permission before selling that information to advertisers and others, a so-called opt-in provision.
During Tuesday's House debate, Rep. Anna Eshoo, D-Calif., said the Republican-drafted measure would blow "a gaping hole in federal privacy protections." She said if consumers don't like Google's privacy protections, they can switch to another search engine, like Bing. But many consumers have little choice when it comes to their Internet provider, she said, especially in rural areas.
Republicans argued that the FCC overstepped its bounds and that it was up to the Federal Trade Commission to regulate privacy. Rep. Marsha Blackburn, R-Tenn., said allowing the FCC and FTC to regulate different swaths of consumers' Internet use would "create confusion within the Internet ecosystem and end up harming consumers."
The chairman of the FCC, Ajit Pai, echoed this argument in a statement praising lawmakers. He said the regulations picked "winners and losers," benefiting certain companies over others.
The NCTA, the Internet & Television Association, said the vote "marks an important step toward restoring consumer privacy protections that apply consistently to all Internet companies."
The Center for Democracy and Technology, however, argued that Congress "voted today to erase basic privacy protections for Americans in favor of the internet service providers' (ISPs) bottom line," calling the regulations "common-sense privacy and security protections for some of their most sensitive personal information."
By overturning the FCC rule under the Congressional Review Act, lawmakers effectively precluded the FCC from restoring these rules in the future.
_________________________________
McCubbin, Trish. American Bar Association, (March 02, 2020)
https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2019-2020/march-april-2020/trump-administration-withdrawl/
“The Trump administration’s withdrawal of California’s Clean Air Act preemption waiver in the SAFE Rule”
2019, the U.S. Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) promulgated a joint rule known as Part One of the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule. As explained in a recent Trends article, Part One of the SAFE Rule involves two interwoven actions by EPA and NHTSA to deny California and other states the ability to adopt greenhouse gas (GHG) tailpipe standards and electric vehicle programs that are more stringent than federal standards on emissions or fuel economy. The agencies then stated that they would issue new (and presumably more relaxed) fuel economy and emission standards in what we assume will be called the Part Two Rule.
This article focuses on EPA’s decision under the Clean Air Act (CAA) to withdraw an important preemption waiver granted to California in 2013. The article will explain the preemption structure of the CAA, the waiver provision that allows California to continue with its own program, the legal issues surrounding this unprecedented effort by EPA to withdraw a previously granted waiver, and the ongoing litigation. Because EPA’s action is so intertwined with NHTSA’s, this article also discusses NHTSA’s groundbreaking determination that California’s standards are preempted by federal fuel economy standards under the Energy Policy and Conservation Act (EPCA).
Preemption under the CAA and the 2013 preemption waiver for California
Under section 202 of the CAA, EPA sets emission standards for new motor vehicles, and section 209 preempts any state from adopting its own such standards, with one important exception: California can request permission to adopt and enforce its own vehicle emission standards—technically called a “waiver of preemption” under section 209(b)—if the state finds that its standards “will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.” California was given this special authority because, in the 1960s, the state was already regulating tailpipe emissions to address its significant air pollution problems.
EPA must grant California’s waiver request unless the agency finds (1) the state’s determination of equivalency is “arbitrary and capricious,” (2) the state does not need its standards “to meet compelling and extraordinary conditions,” or (3) the state standards “are not consistent” with the vehicle emission standards adopted by EPA under section 202. Once EPA grants a waiver, other states can adopt and enforce the California emission standards.
In more than 50 years, EPA has never withdrawn a waiver, and it has only fully denied one of California’s waiver requests—in 2008, when California first requested permission for its GHG tailpipe standards. That denial was quickly reversed by the Obama administration in 2009.
In 2013, EPA again granted California a waiver, this time for its “Advanced Clean Cars” program, which included GHG emission standards for Model Years 2015–2025, the Zero Emission Vehicle (ZEV) mandate (designed to increase the use of electric vehicles), and emission standards on soot- and smog-producing pollutants. Now, in the SAFE Rule, EPA has withdrawn the 2013 waiver as to California’s GHG standards for Model Years 2021–2025 and the ZEV mandate.
Legal issues
EPA’s action raises many complicated legal issues, and this article will summarize just a few primary topics. First, it is unclear whether EPA has any authority to withdraw a previously granted preemption waiver. The CAA does not expressly authorize a withdrawal, but EPA rightly notes that agencies generally have inherent authority to reconsider their actions. Case law provides, however, that doing so is inappropriate if the reversal would harm the reliance interests of affected parties. California and the other states using California’s emission standards argue they have relied on the 2013 waiver in their statewide plans to reduce pollution levels to meet federal air quality requirements. EPA, however, argues the states could not reasonably assume the California standards would always be available because the agency repeatedly emphasized that it would be revisiting the standards for Model Years 2022–2025.
Assuming the states’ reliance interests do not prevent EPA from withdrawing the 2013 waiver, the next question is whether EPA’s justifications for doing so are reasonable. EPA’s first justification is not tied to any language in the CAA and instead depends entirely on NHTSA and the EPCA. The EPCA preempts all state requirements “related to fuel economy standards,” and it offers no carve-out for California. NHTSA is now taking the position that California’s GHG emission standards “relate to” fuel economy and, therefore, are preempted by the EPCA. In turn, EPA claims that because NHTSA’s position renders California’s standards “void ab initio,” EPA’s 2013 grant is “invalid” and must be withdrawn.
EPA is on shaky ground here. The agency acknowledges that it previously refused to consider consistency with EPCA when considering waiver requests because that is not one of the listed criteria under CAA section 209(b). Now, however, it claims justification for doing so because this is a “unique situation” in which EPA is coordinating its actions with NHTSA. Even if this situation were unique—which seems doubtful since EPA and NHTSA have been coordinating for many years—EPA will have a difficult time convincing a court that the agency can withdraw a waiver based on a factor the agency could not consider under its own statutory mandate.
EPA’s second justification is tied directly to the criterion in section 209(b) that allows the agency to deny a waiver if it finds that California “does not need [its] standards to meet compelling and extraordinary conditions.” Although historically EPA has considered whether the state needs a vehicle emissions program at all, now EPA is assessing whether California needs a specific element of that program—here the GHG tailpipe standards and the ZEV mandate. EPA maintains California does not “need” its own GHG standards and ZEV mandate because climate change is a global phenomenon, not one with a “particularized nexus to California’s specific characteristics.” The agency acknowledges that “this interpretation . . . departs in major respects” from EPA’s position in the 2009 and 2013 waivers. Moreover, EPA recently sent California a letter chastising it for failing to adequately address air pollution in that state, noting that California has the worst air pollution in the nation.
EPA and NHTSA are now taking legal positions that contradict their earlier interpretations of the governing statutes. Agencies, of course, have discretion to alter their policies, but they must do so in a thoughtful manner with a record that acknowledges and deals with previously established facts and legal interpretations. FCC v. Fox Television Stations, 556 U.S. 502 (2009). Whether EPA and NHTSA have pulled that off here remains to be seen in the ongoing litigation.
Litigation
The litigation is currently bifurcated. California and 23 other states sued over EPA’s waiver withdrawal in the U.S. Court of Appeals for the District of Columbia Circuit because, under CAA section 307(b)(1), actions that EPA declares (as here) to be “of nationwide scope or effect” must be litigated in that court. The challengers include not only California and the other states, but also municipalities and environmental groups, with electric car manufacturers intervening in support. Major automakers and other states intervened on behalf of the federal defendant agencies. Union of Concerned Scientists v. National Highway Traffic Safety Administration , No. 19-1230 (D.C. Cir.).
Many of the same challengers filed suit against NHTSA’s preemption determination in the federal district court in the District of Columbia, relying on the federal question jurisdiction of the district courts per 28 U.S.C. § 1331. California v. Chao , No. 19-cv-2826 (D.D.C.). NHTSA filed a motion to dismiss the district court litigation, or to transfer the cases to the D.C. Circuit, arguing that the issue of EPCA preemption is so intertwined with EPA’s CAA waiver withdrawal that they have to be heard together. The district court has not yet ruled on the motion to dismiss or transfer.
In the meantime, the petitioners in the D.C. Circuit asked for their cases to be placed in abeyance pending resolution of the federal district court case on the NHTSA determination, as well as resolution of their administrative reconsideration petitions. By contrast, the federal defendants asked the D.C. Circuit for expedited briefing and argument, noting that protracted litigation would create significant uncertainty and costs for both car manufacturers and consumers. At least two automakers have joined that motion for expedited consideration. (Right at press-time, the D.C. Circuit denied the requests for abeyance and expedited action, and it directed the parties to submit briefing proposals by early March.)
In the coming months, we will be watching for the courts to issue rulings on the jurisdictional questions and on the merits of this controversial Part One Rule. We will also be watching for EPA and NHTSA to issue the Part Two Rule with relaxed federal tailpipe standards and fuel economy standards. Stay tuned.
1