Administrative and Legal Processes for State Environmental Law

1. Administrative and Legal Processes for State Environmental Law Sheila Lynch, State of Washington Office of the Attorney General

2. Topics • Making state environmental law • Legislature : adopts statutes • Agencies: adopt rules and policies implementing statutes • Implementing and enforcing state environmental laws • Agency regulatory decision-making • Enforcement • Review of agency decisions

3. Statutes • Adopted by Legislature, signed by the governor • Two types: substantive and procedural • Substantive environmental laws: SMA, FPA, Hydraulic Code, MTCA, for example. Most have some procedural component as well. • Procedural law governing agencies: Administrative Procedure Act, RCW 34.05 • Hybrid: State Environmental Policy Act (SEPA)

4. Example of substantive and procedural provisions – SMA • Substantive provisions: • Policy goals of SMA • Requirements for issuing a Shoreline Substantial Development Permit • Procedural provisions • Requirements for filing a petition for review with the Shoreline Hearings Board

5. Law making by state agencies • State agencies are creatures of statute, their authority is limited to that granted by statute – express and implied • Types of agency law-making • Rulemaking: rules have force of law • Policies/guidance: non-binding

6. APA language • "Rule" means any agency order, directive, or regulation of general applicability (a) the violation of which subjects a person to a penalty or administrative sanction; (b) which establishes, alters, or revokes any procedure, practice, or requirement relating to agency hearings; (c) which establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law; (d) which establishes, alters, or revokes any qualifications or standards for the issuance, suspension, or revocation of licenses to pursue any commercial activity, trade, or profession; or (e) which establishes, alters, or revokes any mandatory standards for any product or material which must be met before distribution or sale. The term includes the amendment or repeal of a prior rule, but does not include (i) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public, (ii) declaratory rulings issued pursuant to RCW 34.05.240, (iii) traffic restrictions for motor vehicles, bicyclists, and pedestrians established by the secretary of transportation or his designee where notice of such restrictions is given by official traffic control devices, or (iv) rules of institutions of higher education involving standards of admission, academic advancement, academic credit, graduation and the granting of degrees, employment relationships, or fiscal processes.

7. Adoption of Rules • Governed by APA, RCW Title 34, Part III • Who does it? • Agencies (e.g. Department of Ecology) • Commissions (Fish & Wildlife Commission) • Independent rulemaking agencies (Forest Practices Board)

8. Rulemaking process • Focus on public notice and involvement, rational decisionmaking by agencies • Notices published in Washington Register, CR 101, 102, 103 • Public hearings & opportunities for comment • Documentation of decision-making process – significant legislative rules, SBEIS, Concise explanatory statement

9. Why rules? • Statutes don’t cover everything • Types of rule strategies: • Performance standards (e.g. water quality standards, forest practices rules) • Permitting and approval standards (e.g. oil spill contingency plan standards, parts of forest practices rules) • Violation standards

10. Agency decisions • Permitting decisions – e.g. Shoreline Substantial Development Permit, Forest Practice Approval • Approvals – e.g. oil spill contingency plan approval • Enforcement decisions – e.g. stop work orders, civil penalties

11. Appeals from Agency Decisions • Step 1: administrative appeals • May involve in-house appeal to agency • Administrative appeal boards • Step 2: review by courts • Superior courts • Courts of Appeal • State Supreme Court

12. Administrative appeals from agency decisions • In-house agency appeals: e.g. informal HPA appeals heard within WDFW • Appeals conducted by agency using Office of Administrative Hearings, e.g. formal HPA appeals • Appeals heard by independent administrative bodies: FPAB, SHB, HAB, GMHBs and PCHB

13. Where to appeal? • Look at statute and agency rules • Example – Hydraulic Code – appeals may be at agency or at HAB depending on type of permit • Example – Forest Practices Act – All appeals go directly to the FPAB • GMA appeals – depends on type of agency decision at issue

14. Example: Hydraulic Code – RCW 77.55.170 •      (5) The board has exclusive jurisdiction to hear appeals arising from the approval, denial, conditioning, or modification of a hydraulic approval issued by the department: (a) Under the authority granted in RCW 77.55.110 for the diversion of water for agricultural irrigation or stock watering purposes or when associated with streambank stabilization to protect farm and agricultural land as defined in RCW 84.34.020; or (b) under the authority granted in RCW 77.55.230 for off-site mitigation proposals. • Other appeals are governed by the APA.

15. Example: Forest Practices Act: RCW 76.09.220 •      (7) The forest practices appeals board shall have exclusive jurisdiction to hear appeals arising from an action or determination by the department, and the department of fish and wildlife, and the department of ecology with respect to management plans provided for under RCW 76.09.350.

16. Who can appeal? • Need standing to appeal. • Statutes generally define standing • Example: Forest Practices Act • Default: APA standing provision • Other parties may be able to participate • Intervenors • Amicus (e.g. Skagit County GMA appeals)

17. How appeals work • Mostly trial type • Judge is ALJ • Evidence usually presented • Sometimes involve motion practice • Governed by APA and agency rules • Each independent appellate body has its own rules (except HAB which uses PCHB rules) • APA applies otherwise • Rules generally default to civil rules of procedure

18. What about local government permitting? • Example: SMA permits • Local government decision • Ecology approval? • Appeals • Local government hearing examiner • SHB • Example: development permits • Appeals generally governed by Land Use Petition Act - LUPA

19. Typical administrative hearing procedure • Notice of appeal filed • ALJ schedules prehearing conference • Further dates scheduled at prehearing conference • Issues determined at conference • Discovery in complex permitting cases • Resolution on motions or following hearing

20. Settlement • Many administrative appeals settle • Reasons: • Strengths or weaknesses of appellant’s case • Cost of litigation • Time it takes to get a decision • Both parties may get something better from settlement than they could from litigation • Agencies interested in on-the-ground results

21. Permit appeals • Generally one of two types • Appeal by permittee of conditions or denial • Appeal by third party • Review is usually de novo – look at statute to find out • Results: reverse and remand, modify permit, or affirm

22. Case Studies – Permitting: The ALPS Case • DNR issues Forest Practices Approval to Plum Creek for road construction • ALPS appeals approval to Forest Practices Appeals Board • Prehearing Conference: Judge sets issues and schedule. Issues go to whether SEPA review should have been done. • Motion to dismiss by ALPS and Plum Creek: one issue dismissed, second partially dismissed • Hearing on remaining issue: FPAB issues Findings of Fact, Conclusions of Law, and Order: issue – whether impacts from construction triggered SEPA review

23. Permit Appeal example: Bee v. WDFW • WDFW issued an HPA • Third party, Bee objected – choice of two appeal processes (APA Part IV, adjudicative proceedings) • Informal appeal: heard by department employee, governed by WDFW rules • Formal appeal: heard by ALJ from Office of Administrative hearings, governed by OAH procedural rules model rules of procedure, chapter 10-08 WAC • Chose formal appeal, ALJ appointed from OAH

24. Appeals of enforcement decisions • Two types of enforcement decisions: • Enforcement orders – typically to comply or cease activity • Civil penalties • Regulatory reform: notice of correction and informal efforts first • Agency usually has burden to show that enforcement action was justified

25. Case study – Enforcement: Boling v. DNR (Stop Work Order) • DNR received complaint of unpermitted logging • DNR forester investigated site, issued stop work order • Boling appealed order to FPAB • Hearing – both sides presented evidence, arguments

26. Stop work order statute • RCW 76.09.080Stop work orders -- Grounds -- Contents -- Procedure -- Appeals.(1) The department shall have the authority to serve upon an operator a stop work order which shall be a final order of the department if:      (a) There is any violation of the provisions of this chapter or the forest practices regulations; or •      (b) There is a deviation from the approved application; or •      (c) Immediate action is necessary to prevent continuation of or to avoid material damage to a public resource. •      (2) The stop work order shall set forth: •      (a) The specific nature, extent, and time of the violation, deviation, damage, or potential damage; •      (b) An order to stop all work connected with the violation, deviation, damage, or potential damage; •      (c) The specific course of action needed to correct such violation or deviation or to prevent damage and to correct and/or compensate for damage to public resources which has resulted from any violation, unauthorized deviation, or willful or negligent disregard for potential damage to a public resource; and/or those courses of action necessary to prevent continuing damage to public resources where the damage is resulting from the forest practice activities but has not resulted from any violation, unauthorized deviation, or negligence; and   

27. Stop work order statute, cont. •   (d) The right of the operator to a hearing before the appeals board. •      The department shall immediately file a copy of such order with the appeals board and mail a copy thereof to the timber owner and forest land owner at the addresses shown on the application. The operator, timber owner, or forest land owner may commence an appeal to the appeals board within fifteen days after service upon the operator. If such appeal is commenced, a hearing shall be held not more than twenty days after copies of the notice of appeal were filed with the appeals board. Such proceeding shall be an adjudicative proceeding within the meaning of chapter 34.05 RCW, the Administrative Procedure Act. The operator shall comply with the order of the department immediately upon being served, but the appeals board if requested shall have authority to continue or discontinue in whole or in part the order of the department under such conditions as it may impose pending the outcome of the proceeding.

28. Penalty case: Brown Boy Feed v. Department of Ecology • Failure to report spill of diesel fuel and to take immediate action to clean up • RCW 43.21B.300 governs penalty procedures: penalty may be appealed to PCHB within 30days after receipt of notice of the penalty • PCHB affirmed the penalty in this case.

29. Judicial review of agency decisions • Governed by the APA, RCW 34.05.510 etc. • Appeal of agency rules is direct to court • Appeal of agency orders • Exhaustion of administrative remedies required • Usually can’t raise new issues • Review of facts limited to agency record • Standard of review is deferential to agency

30. Case Study: Permitting – ALPS case part II – Judicial review • Appeal to Superior Court by both ALPS and Plum Creek – APA Part V governs • Superior court review: • Looks at legal issues de novo • Fact issues based on record before the FPAB • Superior court concludes SEPA should have applied • Both parties appeal to Court of Appeals • Court of Appeals reviews FPAB decision • Court of Appeals affirms FPAB decision