Overton Park v. Volpe - United States Supreme Court 1971 • Road through the park case • What was the protest - why did the citizens say this was an improper decision? • Citizens protested, said the statute only allowed this if there was no feasible and prudent alternative route • What was wrong with the record? • Secretary gave no reasons
Feasible and Prudent?? • What does feasible mean? • How can it conflict with prudent? • Why is it always cheaper and easier to build roads through parks and public lands? • Who are the opposing constituencies? • What indicates that this is a compromise law?
District Court • District court gave Secretary a summary judgment, affirmed by the Cir. • These were based in part on briefs that went beyond the original record
Standard of Review • Is this a rule making? • Is it an adjudication, i.e., was there a trial type proceeding? • What about the public hearings? • Were they to make decisions or to take input? • Were they done by the feds at all? • Did the stature require de novo review?
What is the Hard Look Review? • "thorough, probing, in-depth review" • Hard look kicks in after Chevron step 1 • The court still defers to the agency's policy making role • The court looks hard to make sure the agency considered all the relevant factors in making the policy • Is this really meddling in policy making? • What is the cost to the agency of reviewing lots of factors in depth to satisfy the court?
United States Supreme Court • The United States Supreme Court said that the secretary did not have to make formal findings • The record needed to support the action and it could not be supplemented by briefs. • If the secretary does not make findings, then the district court has two alternatives: • Remand, or • Require testimony of agency decisionmakers, effectively building the missing record • Why is the second alternative not attractive to the agency?
Environmental Regulation • Permitting new stuff • What is the effect of delay here? • Enforcing rules against old stuff • Who pushes for delay here? • Why is it harder to push for action than for delay? • Why could the environmentalists get the court to push the agency in the regulators?
Atomic Power • What are the fears? • Administrative delay stopped the industry • Hugely expensive plants whose profitability depended on rate setting decisions that are subject to politics • What new concerns has shifted environmental fears since the 1980s?
The Seat Belt Saga • First, there is popular concern about accidents • Then interest groups • Individual stories - MADD is an example • Nader and Public Interest • Unsafe at any Speed - 1965 • Insurance industry
The Seat Belt Saga II • Then Congress passes the Traffic and Motor Vehicle Safety Act • 1967 - regulation requiring seatbelts • 1972 - realized that people were not wearing the seatbelts • Regulation requiring automatic seatbelts or airbags by 1975
The Seat Belt Saga III • Required cars between 1973 and 1975 to have automatic seatbelts or ignition interlocks • Chrysler v. DOT affirmed the regs • Industry choose interlocks - why? • 1974 - Congress passed a law banning regs requiring interlocks and said that all future regs on passive restraints had to be submitted to Congress for legislative veto • Chada killed that
The Seat Belt Saga IV • DOT under Ford withdrew the regs • DOT under Carter (a few months later) passed new passive restraint regs for 1982 and Congress did not veto them • 1979 - Regs were affirmed in Pacific Legal Foundation v. DOT
The Seat Belt Saga V • 1981 - DOT under Reagan withdrew the regs because the car companies were going to use automatic seatbelts that could be disconnected. • 1983 - Motor Vehicles Manufacturers Assoc. v. State Farm hit the United States Supreme Court
Motor Vehicle Manufacturers v State Farm Mutual Auto • Why does State Farm care? • What was the key agency law issue in this case? • How was this relevant to the transition from Clinton to Bush? • How did it drive the midnight rulemaking? • What was the rationale for the court's ruling? • How is this different from saying that agencies are bound by precedent?
The Seat Belt Saga VI • 1984 - DOT (Libby Dole) promulgated a reg requiring automatic seatbelts or airbags in all cars after 1989, unless • 2/3 of the population were covered by state seatbelt laws, and • the laws met certain criteria • What did some states do? • $5 penalty • No stop • No meaningful seatbelt defense • Most State laws did not meet the criteria
The Seat Belt Saga VII • 1997 - most newer cars had airbags • 1998 - airbags kill grannies and little kids! • Nothing new - known at the time • Save many more • 1999 - You can get your airbag disconnected • Products liability issues?
What Else Affects Automobile Safety? • Drunk driving laws? • Anti-lock brakes? • Stability control systems? • Speeding? • Why not lower speed limits? • Where do most accidents happen? • Limits on teen age drivers?
Regulation of Automobile Gas Mileage • What are the benefits of reduced oil consumption? • For individuals? • For the country? • How do you make cars more efficient? • What are the trade-offs? • Convenience • Cost/safety • What limits safety of SUVs?
Corrosion Proof Fittings v. U.S. E.P.A., 947 F.2d. 1201 (1991) • Rulemaking under the Toxic Substances Control Act • This act is not self-implementing • Nothing is regulated until the agency set standards • How long was this rule in process?
What are the Requirements of the Act? • "Reasonable basis" to believe that there is an "unreasonable risk of injury" • What do you consider to decide if the risk is unreasonable? • Does this mean no risk? • The regulation must be "the least burdensome" • What is the burden on the agency when it bans something?
Cost/Risk/Benefit • What is asbestos really good for? • What are the potential risks for substituting other materials? • Do we know that these materials are safe? • Ever work with fiberglass insulation? • How many lives were they going to say? • What was this going to cost? • Why did the agency really ban asbestos?
Judicial Review • Why is it easier for the court to second-guess the agency than for the agency to do the cost benefit analysis? • Can any risk/cost/benefit analysis be complete? • What are the conflicts between discounting to present day costs and trying to monetize future life savings? • What was the long term impact of the agency getting hammered in this case? • How about when the Corp got hammered over the environmental impact statement for Lake Pontchartrain flood gates?