State Administrative Processes in Environmental Law

1. State Administrative Processes in Environmental Law Maia Bellon, Assistant Attorney General

2. Enactment of Environmental Laws Legislative Branch of Government • CONGRESS • US CODE • WASHINGTON STATE LEGISLATURE • REVISED CODE OF WASHINGTON • LOCAL GOVERNMENT • ORDINANCES • MUNICIPAL CODES

3. Administration of Environmental Laws Executive Branch of Government • Departments of the Federal Government • Environmental Protection Agency • Agencies of the State of Washington • Department of Ecology • Department of Natural Resources • City or County Departments • Public Works Department • Water Department • Wastewater LOTT

4. Adjudication of Environmental Laws Judicial Branch of Government • Federal Courts • Federal District Courts, Circuit Courts • United States Supreme Court • State Courts • Superior Courts, Appellate Courts • Washington State Supreme Court • Administrative Hearings Boards • Environmental Hearings Office • Growth Management Hearings Boards

5. WHY IS OUR GOVERNMENT SET-UP AS THREE SEPARATE BRANCHES OF GOVERNMENT? Separation of Powers Checks and Balances

6. Agencies Generally • Agencies • LOCAL, STATE, FEDERAL • Agency Powers and Duties • LEGISLATE: adopt regulations • ADMINISTRATE: implement rules; develop policies and procedures; issue decisions, orders, and penalties • ADJUDICATE: conduct administrative hearings

7. Administrative Procedure Act • Codified in RCW 34.05 • Main Sections: • Public Access to Agency Rules • Rule-Making Procedures • Adjudicative Proceedings • Judicial Review and Civil Enforcement • Legislative Review

8. Definition of Agency The APA defines agencies of the state as: “. . . any state board, commission, department, institution of higher education, or officer, authorized by law to make rules or to conduct adjudicative proceedings, except those in the legislative or judicial branches, the governor, or the attorney general . . . .” RCW 34.05.010(2)

9. Agency Rules Defined in the APA (RCW 34.05.010(16)) as an agency order, directive, or regulation of general applicability: • The violation of which subjects one to penalty or administrative sanction; or • That establishes, alters, or revokes any procedure, practice, or requirement relating to agency hearings; continued

10. Agency Rules • That establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges; • That establishes, alters, or revokes any qualification or standards related to licenses for professionals or trades; or • That establishes, alters, or revokes any mandatory standards for any product or material before distribution or sale

11. Appeal of Agency Rule • Generally, agency rules must be appealed to superior court (declaratory judgment) and can only be declared invalid if: • Unconstitutional (e.g., void for vagueness—Longview Fibre v. Ecology); • Exceeds statutory authority of agency; • Rule-making procedures violated; or • Arbitrary and capricious

12. Agency Action The APA defines agency action as: “. . . licensing, the implementation or enforcement of a statute, the adoption or application of an agency rule or order, the imposition of sanctions, or the granting or withholding of benefits.” RCW 34.05.010(3)

13. Appeal of Agency Action • Agency actions can be appealed, such as the issuance of an enforcement order, penalty, permit, or license revocation • Examples: • $15,000 Clean Air Act penalty (tire burn) • Water quality enforcement order • Revocation of emission check license • Shoreline variance permit denial • Water resources permit decision

14. Appeal of Agency Action Appeals of State of Washington, Department of Ecology decisions are filed with the Environmental Hearings Office and are generally conducted “de novo” Exceptions: declaratory or mandamus actions to superior court, water rights adjudications, MTCA orders, etc.

15. Environmental Hearings Office • Pollution Control Hearings Board • Shorelines Hearings Board • Hydraulic Appeals Board • Forest Practices Appeals Board • Environmental and Land Use Hearings Board

16. Pollution Control Hearings Board • Established by the Legislature to hear appeals of Ecology decisions • Quasi-judicial entity • Members appointed by the Governor • Political diversity requirement • Expertise in environmental issues • Uniform review (vs. fragmented results across multiple superior courts)

17. Adjudicative Proceedings Provided for in the APA, however, not applicable to the Department of Ecology Because Legislature set-up EHO route Applies to other state agencies, e.g., SHS, L&I, DOH

18. Judicial Review Appeals of EHO Decisions • Decision must be final under the APA • Record review (rather than de novo) • Administrative remedies must be exhausted unless: • Remedy would be patently inadequate; • Exhaustion would be futile; or • Grave irreparable harm would result from requiring exhaustion--outweighing the public policy for requirement of exhaustion

19. Standards for Reviewing Court • The EHO order is in violation of the constitution (facially or as-applied) • The order exceeds statutory authority • The EHO has engaged in unlawful procedures or decision-making • Erroneous decision • Order not supported by substantial evidence in the record • The order is arbitrary or capricious

20. Appellate Process • Appeals of EHO decisions generally go to superior court, then to appellate court, finally to supreme court (discretionary) • Parties can apply for “direct review” to the appellate courts from the EHO • PCHB must first issue a “certificate of appealability” before court can consider • Appellate courts have discretion in deciding to take direct review petitions

21. Standing to Obtain Judicial Review • Person is aggrieved or adversely affected by the agency action • Agency action has prejudiced or is likely to prejudice that person; • Person’s asserted interests are among those the agency was required to consider when it engaged in the agency action; and • A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action

22. Case Study: Tire Burning • Landowner writes a letter to Ecology asking for information about whether it is legal to burn rubber tires on her property. • Ecology responds with a copy of the “Outdoor Burning Rules” (that Ecology adopted through rulemaking) and a cover letter explaining that it is not legal to burn rubber tires on her property per the rules. • Has Ecology taken “agency action” that is appealable to the PCHB?

23. Case Study: Tire Burning • Landowner’s neighbor files a complaint that Landowner burned a pile of tires. • Ecology investigates and finds a smoldering and smoking pile of tires on Landowner’s property. • Ecology issues Landowner a $15,000 penalty under the Clean Air Act for violation of the outdoor burning rules. • Has Ecology taken an action that is appealable to the PCHB?

24. Case Study: Mine v. Ecology Mine applies to Ecology for a groundwater permit Ecology denies Mine’s permit application Has Ecology taken an agency action that is appealable? Where does the Mine file its appeal?

25. Case Study: Mine v. Ecology • Mine appeals Ecology’s permit denial to the PCHB • The parties engage in dispositive motion practice • Partial summary judgment order issued • Mine appeals the PCHB’s summary judgment order to King County Superior Court

26. Case Study: Mine v. Ecology • Can King County Superior Court accept the Mine’s petition for judicial review of the PCHB’s partial summary judgment order? • Has Mine exhausted administrative remedies? • Do any exceptions to the “exhaustion of administrative remedies” rule apply to Mine’s appeal?

27. Case Study: PCHB Decision & Authority • Ecology issues an enforcement order to Sue to stop dumping oil waste into creek • Sue appeals enforcement order to PCHB asserting she did no wrong • PCHB finds that Sue indeed violated the water quality laws and issues decision upholding Ecology’s enforcement order

28. Case Study: PCHB Decision & Authority • The PCHB’s decision goes on to criticize Ecology for not also issuing Sue a penalty for the water quality violation • The PCHB then orders Ecology to issue a $100,000 penalty to Sue for the water quality violation • Does the PCHB have authority to do this? • Must Ecology issue a penalty to Sue?

29. Maia Bellon, Assistant Attorney General Ecology Division Washington Attorney General’s Office 360/586-6750 maiab@atg.wa.gov