November 10, 2011: Getting from A Contested Case Hearing to Federal Court; (b) Addressing Case or Controversy Requirements

Part I: Ripeness Who wants CCH review? Could be: General Permit: staff? Staff lawyers? Community groups? Individual permit: (a) staff? (b) business? (c) community groups? Rule: (a) Staff? (b) business? (c)community groups? Review of CCH Procedures CCH conducted according to sections 554, 556, 557 of APA. (Handouts). The CCH is structured like a trial with a fact-finding process. Note that the CCH really does function like a fact finder if the dispute goes before the ALJ for evaluation the first time. A CCH to review the appeal of a rulemaking also involves witnesses, documents, factual arguments, but limited to the issues considered in the rulemaking itself: questioning the legitimacy of the agencys decision-making. When CCH is denied or circumvented Agency has discretion to grant or deny contested case hearing. Complex scientific issues, initial permit with large public impact, widespread public interest, issues unresolved by agency would be some factors making the hearing likely. If hearing denied, person has right to file in Federal District Court (or Texas District Court in Travis County if from a state agency). Depending on statute: party can obtain right to sue letter from agency usually with a notice period (60 days in enviro cases). Agency plus permit applicant. (watch out for exhaustion of remedies). ALJs Powers After CCH Under section 556, federal ALJ can render final decision for agency. However, most common practice is to remand the decision back to the agency for further consideration or for Administrators approval of decision. Texas: ALJ sends its recommendation to the commissioners of the agency for adoption or refusal. (More Texas CCH law later). Appellate Provisions of APA Appeal to federal court: Section 700 of the APA. (Handouts) See section 702: A person suffering legal wrong because of agency action , or adversely affected or aggrieved by agency within meaning of relevant statute, is entitled to judicial review thereof. See section 704: final agency action.

On Appeal: Types of Error Opponent can file notice of appeal (60 days in advance). If a CCH request is denied, appeal can happen after rulemaking. If CCH happens, appeal goes to federal court afterwards. Federal District Court sits as an appellate court and applies section 706 of APA to evaluate the record. (handout): (a) arbitrary and capricious, (c)contrary to constitutional right or immunity, (d) in excess of statutory authority; (e) substantial evidence; (f) de novo review shows unwarranted. Gatekeeper to Federal Court: Case or Controversy Note that court can remand the case and order more fact finding but cannot itself expand the factual record. Before a court can review the case, the plaintiff/appellant must demonstrate the case meets Case or Controversy Doctrines: ripeness and standing. (Note agencies do not have to meet Article III requirements). Article III: Cases or Controversies. Initial issue to simplify discussion of Lujan I and Lujan II: organizational standing. Friends of the Earth v. Laidlaw (Supreme Court 2000): An association has standing to bring suit on behalf of its members when (a) its members would otherwise have standing to sue on their own right, (b) the interests at stake are germane to the orgs purpose, and (c) neither the claim asserted nor the relief requested requires participation of individual members in the lawsuit. Ripeness: National Wildlife Federation (NWF) (Note that both Lujan v. Defenders of Wildlife and Lujan v. National Wildlife Federation involve organizational standing. Contrast with for-profit corporation). NWF On Reflection Thoughts on the opinion: agency action under APA: does court definition match? Substantial evidence, Chevron apply to the initial decision By the time an individual parcel is already up for leasing and an environmental impact statement is done, will it be easier or harder to prevent the action (where the injury is recreational use and enjoyment). One prudential consideration: political question

 In addition to ripeness (NWF) and standing (to be discussed in Defenders of Wildlife), the court may refuse to hear a case on case or controversy grounds if it identifies one of six so-called prudential considerations. Two of these: mootness and political question. Political question shows up in NWF: Page 105: Decision is for the Department of the Interior or the Halls of Congress, where such decisions are usually made. Problem: If the decisions are usually made in the Department and the plaintiff here contested it in the Department, did it not satisfy Courts argument? Courts and Large, Far-Reaching Decisions Charles Alan Wright, Federal Practice and Procedure: The courts do not want to be viewed as the panacea for all of societys ills, a task too large and often inappropriate for them to handle. If an injury is far reaching, it is likely that a better solution would come from a political forum. Some Other Considerations NWF: How far removed from the event can the chain of causality run and still be considered ripe for adjudication? A hidden question here: regardless of how far in advance in time, at what point does the court still have the ability to prevent the harm? If plaintiff in NWF is required to wait for individual permitting decisions for mining, has the time already passed for the court to provide a meaningful remedy? (Transition to standing) Standing Lujan v. Defenders of Wildlife. Standing: (1) Imminent, particularized harm (concrete) (2) Harm is fairly attributable to defendant. (3) Favorable court decision would provide meaningful redress to the plaintiff. (Harm, attributability, redress). Defenders of Wildlife : Background Carter Dept of Interior: Endangered Species Act evaluation for projects US funds overseas. Reagan Dept. of Interior: Revoked the requirement. By its own terms, listing of species under ESA goes beyond American boundaries. No ability to enforce the law outside of US, obviously, but the list itself is international. (Also- domestically under NEPA, EIS required; takings assessment required).

Defenders of Wildlife (1992) Organizational standing through Kelly and Skillbred affidavits. (plus ecosystem nexus). Kelly: travelled to Egypt in 1986 to observe Nile crocodile. Intends to do so again. Aswan Dam project threatens. Skilbred: Sri Lanka 1981 Asian elephant and leopard. Mahaweli development project through USAID. Scalia: no imminent injury. Intent to return is not enough. Scalia: no redressability. Agencies doing the projects werent parties, just the Secretary of the Interior to rescind his rule. No guarantee of redress. Also- US funding only a small part- projects will continue. Ecosystem nexus doesnt work because opinions require physical proximity to harm (environmental cases). Procedural right issue: this isnt the same as a procedural error that created a separate harm (denial of hearing before revoking permit). Dissent: the affidavits created a genuine issue of material fact sufficient to survive summary judgment. Majoritys requirement of specific facts up front showing definite return to regions is a return to fact pleading abandoned for decades. Fact issue as to how much the loss of federal funds would affect the projects and in turn the species.