Within the Scope

Blogging on Administrative Law and the Public Sector

Wednesday, December 24, 2008

Sierra Club v. EPA: A Wider Doctrine on the Time to File Rulemaking Challenges?

In an interesting opinion issued last Friday, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit held that a set of 2006 revisions to certain Clean Air Act rules “constructively reopened” the rules to collateral attack.

The Clean Air Act provides that “[a]ny petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register.” In the case decided on Friday, the EPA argued that the Sierra Club had waived its challenge to certain exemptions from the Clean Air Act emission standards by not challenging the exemptions when they were first promulgated in 1994.

The Sierra Club argued, and a majority of the Court agreed, that the agency’s later revisions to the exemptions “constructively reopened” the rulemaking so as to restart the time period for a proper court challenge. Circuit Court Judith W. Rogers wrote:
Petitioners recount, and EPA does not dispute, that: To avoid creating a “blanket exemption from emission limits,” EPA’s 1994 rule required that (1) sources comply with their [startups, shutdowns, and malfunctions (“SSM”)] plans during periods of SSM; (2) SSM plans be reviewed and approved by permitting authorities like any other applicable requirement; (3) SSM plans be unconditionally available to the public, which could participate in evaluating their adequacy in the permit approval process; and (4) SSM plan provisions be directly enforceable requirements. In the rulemakings challenged here, however, EPA has eliminated all of these safeguards. SSM plans are no longer enforceable requirements, and EPA has expressly retracted the requirement that sources comply with them. EPA also has eliminated any requirement that SSM plans be vetted for adequacy and any opportunity for citizens to see or object to them.

Shifting from a regulatory scheme based on a mandatory SSM plan that was part of a source’s Title V permit, which is subject to prior approval with public involvement, to a regulatory scheme with a non-mandatory plan providing for no such approval or involvement but only after-the-fact reporting changed the calculus for petitioners in seeking judicial review, and thereby constructively reopened consideration of the exemption from section 112 emission standards during SSM events.
Dissenting, Senior Circuit Judge A. Raymond Randolph argued that the “constructive reopening” doctrine as announced by the court majority in this case widened the doctrine to new and unwise limits.

Of course an agency may give notice and ask for comment on whether an existing regulation should be modified or repealed or retained, or it may indicate in response to comments that it has reconsidered the regulation. Or an agency may give its regulation new significance by altering other regulations incorporating it by reference. In any one of these situations the 60-day period would begin to run again. But nothing of the sort occurred here. According to Sierra Club, EPA’s rulemakings in 2002, 2003, and 2006 rendered enforcement of the 1994 startup, shutdown, and malfunction regulations more difficult. Even if true, that could hardly have amounted to agency “action” re-promulgating the 1994 regulations, which is what § 7607(b)(1) requires as a prerequisite for judicial review….

In Kennecott Utah Copper Corp. v. Dep’t of Interior, 88 F.3d 1191, 1214 (D.C. Cir. 1996), regulated industries sought judicial review of an allegedly invalid regulation after changes in related regulations made its enforcement more likely and more punitive. Sierra Club has no comparable financial incentives capable of assessment by a court; instead, it presumably has an incentive to challenge any regulatory change that might lead to increased pollution. The majority’s rationale implies that each time EPA changes an emissions regulation, it risks subjecting every related regulation to challenges from third parties. Such a regime, and the instability it generates, is intolerable. Perhaps that is why, until today, we have limited the constructive reopening doctrine to cases involving regulated entities.
The panel’s complete set of analyses are accessible here.

Saturday, December 20, 2008

RTO Government Affairs Expenses Survive “Compelled Speech” Challenge

In an interesting opinion issued on Tuesday of this week, a panel of the U.S. Court of Appeals for the District of Columbia Circuit turned away the challenge of three northeastern utilities to the tariff sheets submitted by their Regional Transmission Organization – the ISO New England, Inc.

Regional Transmission Organizations – RTOs – consolidate operational control over electricity transmission services within a particular geographic area and are obliged to submit tariffs for review by the Federal Regulatory Energy Commission. The utilities complained that FERC should have disallowed $2 million in governmental affairs expenses that ISO New England sought to recover from its customer-utilities. The utilities argued that the Commission’s acquiescence to the recovery of such expenses obliged them to underwrite speech on legislative and regulatory issues with which they did not agree; in violation of the First Amendment.

Disagreeing, the panel held that permitting recovery of such expenses by the larger organization did not violate the associational or free speech rights of the utilities. As the panel reasoned, “a government may adopt rules making it very costly for a person to avoid membership in a group, and yet allow the group to charge members (including dissenters) for the costs of expressing views ‘germane’ to the group’s mission.”

The panel’s complete analysis is accessible here.

Thursday, December 18, 2008

A New Code of Judicial Conduct! (Minus the Most Worrisome Parts)

By way of an Order issued today, the Minnesota Supreme Court promulgated a revised Code of Judicial Conduct that will take effect on July 1, 2009.

The revised Code sets forth “overarching principles of judicial ethics that all judges must observe” and includes specific prohibitions with respect to extra-judicial activities – most notably, standards for ethical conduct during campaigns for judicial office.

Significantly, the Court jettisoned recommendations that the Code of Judicial Conduct punish campaigning for judicial office at any time outside of a two-year interval which precedes an election. Because state court judges in Minnesota typically serve six year terms, I worried that a wholesale ban on campaign activities during two-thirds of this time period would draw the state into expensive civil rights litigation. In written comments submitted in 2007, I urged the Court not to adopt this proposal. It is a real holiday blessing that the Court moved away from such prohibitions when issuing the new standards.

The most surprising addition to the new Code is a special exception to the general ban on judges contributing money “to a candidate for public office.” The exception permits state court judges to solicit campaign contributions from fellow judges; provided that the judge who makes the solicitation “does not exercise supervisory or appellate authority” over the would-be donor judges. See, Canons 4.1 (a) and 4.2 (b)(3) (c). It is not clear from the accompanying Comment how this exception to the general ban on judges contributing to political campaigns is helpful.

Lastly, it is worthy of note that two Justices (G. Barry Anderson and Helen Meyer) withheld their votes from the final plan. In dissent, Justice G. Barry Anderson argued that under the new Code the Board of Judicial Standards would be asked to operate as a “campaign finance regulatory agency;” a mission for which it was not now equipped. He wrote:
As a practical matter, I fear we have asked the underfunded Board on Judicial Standards, which enforces the Minnesota Code of Judicial Conduct, to undertake a task for which it is ill-equipped and without experience….

I question the wisdom of kicking the judicial disciplinary machinery into high gear for minor and inadvertent violations of the contribution limits but it might be equally problematic to give the Board on Judicial Standards, and its executive secretary, discretion to decide what is, or is not, a de minimis violation of those standards.
Justice Anderson speaks with genuine authority on the topic of “operating a campaign finance regulatory agency” – having run the Minnesota Campaign Finance and Public Disclosure Board, as its Chairman, in 1997 and 1998.

The entire Order, dissent, and accompanying Code text is accessible here.

Minnesota U.S. Senate Recount: Oral Argument Video Posted to the Web

And is accessible here.

Wednesday, December 17, 2008

Coloring Outside of the Lines: Is State Law a Boundary on VRA Remedies?

In a genuinely fascinating opinion issued yesterday, a divided panel of the U.S. Court of Appeals for the Eighth Circuit upheld a lower court’s order abolishing the city council ward system in Martin, South Dakota and replacing it with an at-large council system.

Two Native American voters in Martin had earlier sued to set aside the city’s ward system as violative of Section 2 of the Voting Rights Act. These voters asserted that the aldermanic system in Martin diluted Native American votes so that none of the candidates preferred by their community were able to win elective office. For its part, the City replied that it was simply not possible to draw a single-member council district in Martin that included a majority of Native American voters.

Agreeing that it could not draw such a district itself, the trial court ordered that the ward system of electing city council members be supplanted with an at-large election system. Presumably, by “bullet balloting,” Native American voters in Martin could then elect at least one member (and perhaps more members) to the city council. This innovation, however, would be the only at-large city council election system in South Dakota; that state's law does not otherwise provide for such an arrangement.

A divided appellate panel affirmed the lower court’s entry of the injunction, concluding that the remedy did not “intrude on state policy any more than necessary” to implement the Voting Rights Act. Dissenting, Circuit Judge Steven M. Colloton wrote:
To the extent the plaintiffs made a sufficient showing to justify a finding of liability for vote dilution under § 2, this showing required proof that Native Americans were “sufficiently large and compact to constitute a majority in a single-member district.” Thornburg v. Gingles. If the record supports that conclusion (the so-called first Gingles precondition), then it was unnecessary for the district court to impose a remedy contrary to South Dakota law. The appropriate remedy would have been to create a district (or ward) in which Native Americans constitute a majority. The district court concluded, however, that it “could not draw a three-ward plan that contains an effective majority of Indian voters in one ward.” If this conclusion is correct, then there was no liability for vote dilution in the first place, because the first Gingles precondition was not satisfied. Accordingly, I would remand the case to the district court with directions either to revisit the finding of liability and dismiss the case if the plaintiffs have failed to meet the first Gingles precondition, or to implement a remedy that conforms to South Dakota law by creating a ward in which Native Americans constitute a majority.
The complete set of analyses in the case, Cottier v. City of Martin, are accessible here.

Monday, December 15, 2008

Not Everything is a Potential Blog Post!

How true....

There are lots of interesting articles and legal news items that cross my desk, but for one or another reason are simply not matters that oblige a separate post. Presumably, that is why there is Twitter.

Twitter is an online posting site where short messages (of no more than 140 characters) can be shared with subscribers and a wide range of others. It's raison d'être is to facilitate short, frequent updates with one's network.

So, as an experiment, I will post to Twitter (and simultaneously to the bottom right hand sidebar of this blog under "My Reading Table,") internet links to some of the worthwhile items that I am reading, but which are not otherwise summarized in more detail on these pages.

So, hopefully, there will be more to browse. More to share. And more to learn.

Sunday, December 14, 2008

In a One-Horse Open Sleigh (Hey!): Podcasts for Administrative Lawyers

Mindful that many of the readers of these pages will be going over the river and through the woods to Grandmother’s house, I have listed a few items that might be worth downloading for your holiday travels.

n A panel discussion reflecting upon the 25th anniversary of the landmark case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The discussion, held at the National Convention of the Federalist Society, and featuring University of Minnesota Law School Associate Professor of Law, Kristin E. Hickman, is accessible here.

n The American Constitution’s Society’s briefing on the U.S. Supreme Court case of Pleasant Grove City, Utah v. Summum. (By way of background, Pleasant Grove City owns and displays a number of monuments in a municipal park. Respondent Summum sued in federal court contending that because the city had accepted monuments donated by local civic groups, the First Amendment obliged the city to accept and display Summum's “Seven Aphorisms” monument as well. The district court denied Summum’s request for a preliminary injunction, but a panel of the U.S. Court of Appeals for Tenth Circuit reversed this decision, holding that the city must immediately erect and display Summum’s monument.) The panel discussion, which occurred one week prior to the November 12 argument at the High Court, is accessible here.

n The Indiana Department of Education has recently posted a set of downloadable real player recordings from its October 15, 2008 conference on Response to Intervention. RTI, a concept that is familiar to special education lawyers, is a set of assessment and intervention processes that identify, monitor and address student academic difficulties. Videos from the wide-ranging set of conference presentations that occurred on that day are accessible here.

n On Wednesday of this week, the American Enterprise Institute hosted a panel discussion entitled Regulation and Oversight: Advice for the New Administration. Audio and video from this panel discussion is accessible here.

Thursday, December 11, 2008

Timing is Everything: Panels Explain Deadlines for Final Action

Within the last four weeks, the Minnesota Court of Appeals has twice addressed the question of when an agency head must make a final decision upon a contested case record – both times providing the instruction in unpublished opinions.

As readers of these pages will recall, Minnesota law provides that “[u]nless otherwise provided by law, the report or order of the administrative law judge constitutes the final decision in the case unless the agency modifies or rejects it … within 90 days after the record of the proceeding closes ….”

In mid-November, an appellate panel held that unless another date is set by the agency, a final decision is due within 90 days of the last presentation of arguments to the agency head. If the agency’s decision is not forthcoming within that period, continued the panel, the Administrative Law Judge’s decision below becomes final.

On Tuesday, a separate panel, in a different case, added other gloss. In “matters relating to zoning,” a final decision by the agency head is due within 60 days of the deadline for filing exceptions and arguments to the Administrative Law Judge’s report. As the panel reasoned, a narrowing of the timeline is required because Minn. Stat. § 15.99 provides that “an agency must approve or deny within 60 days a written request relating to zoning … [and that failure] of an agency to deny a request within 60 days is approval of the request.”

Read together, the opinions make clear that these are uncertain times for agency heads. This is so because the boundaries of “the 60-day rule” are not clearly marked. Final agency action is due within 60 days on “a written application related to zoning, septic systems, watershed district review, soil and water conservation district review, or the expansion of the metropolitan urban service area, for a permit, license, or other governmental approval of an action.” Arguably, this description could include a wide array of agency decisions from contested cases.

The opinion in the first case referenced above is accessible here. The opinion in the second case is accessible here.

Wednesday, December 10, 2008

Until the Cows Come Home: Stray Voltage and the Filed Rate Doctrine

While the Minnesota Supreme Court continues to consider the reach of the filed-rate doctrine as a bar to judicial consideration of claims filed by ratepayers against their utilities (as I noted here and here), yesterday, a panel of the Minnesota Court of Appeals touched upon this same question in a parallel and unrelated case.

In a rigorous and very scholarly opinion by Judge Harriet Lansing, the panel held that the filed-rate doctrine barred claims for injunctive relief, but would not foreclose court consideration of certain other claims for monetary relief. At issue in the specific case was whether a set of dairy farmers could maintain tort claims against their electric utility for the damage to their farm’s milk production. The farmers claimed that the utility negligently permitted excessive stray voltage to escape from a transmission line that traversed the farm - damaging their cows and suppressing the production of milk.

Concluding that the proper resolution of such claims were not within the special competence of the Minnesota Public Utilities Commission, but instead “inherently judicial,” Judge Lansing wrote:

First, the MPUC does not have the capacity to address the Siewerts’ claims for compensatory damages in tort, because nowhere in the enabling statutes does the legislature give it authority to provide this type of damages.

Second, even acknowledging the relative complexity of electrical-distribution systems, resolving the issues of fact presented by the Siewerts is not beyond “the conventional experience of judges.”

And, third, the resolution of fact issues underlying the Siewerts’ claims does not require “the exercise of administrative discretion” or create an administrative need for “uniformity and consistency.” Deciding whether specific facts meet the elements of a tort claim is not uniquely suited to an administrative agency, but instead is regularly decided by juries. The claims do not turn on a safety standard that requires definitive uniformity. The common-law principles underlying resolution of negligence actions will provide the necessary uniformity and consistency.

The panel’s complete analysis is accessible here.

Tuesday, December 09, 2008

Senator Craig, the First Amendment and Our Collective Struggles for Modesty

In an unpublished opinion issued earlier today, a panel of the Minnesota Court of Appeals turned away dual challenges to the August 2007 conviction of U.S. Senator Larry Craig (R – Idaho) on charges of disorderly conduct.

The appellate panel denied both Senator Craig’s request to withdraw his earlier guilty plea as well as the Senator’s and the American Civil Liberties Union’s challenges to the constitutionality of Minnesota’s disorderly conduct statute.

On the constitutional claims, the panel “assume[d] without deciding” that Senator Craig’s gestures underneath a public bathroom divider merited First Amendment protection as expressive “speech;” going on to hold that even if the signals were speech, the disorderly conduct statute was sufficiently detailed and necessary to pass constitutional muster.

While agreeing that courts should, whenever possible, avoid deciding constitutional questions, I wondered whether the public would have benefitted more if the panel had addressed the question of whether Senator Craig’s bathroom entreaties qualified as protected speech.

While there are solid arguments that such communiqués are outside of First Amendment protections, such a conclusion is not as sturdy or as widely shared as one might guess. Before the District Court below, for example, the ACLU argued that Senator Craig’s conviction was void "because individuals engaging in consensual sex in a public restroom stall have a reasonable expectation of privacy ….” As to this point, the District Court replied that “depending on the facts of any particular case, that may be true, [yet] the acts alleged in this case are the solicitations ….” Before the District Court, and still today, there is a real tussle over whether the Seantor's conduct is protected speech.

Likewise important, because the appellate panel assumed that the Senator’s gestures qualified as speech, a jump to the second step in the legal analysis presumably placed upon the government the burden of establishing a compelling need and a narrow tailoring of any restrictions in the disorderly conduct statute. The government cleared those hurdles in what appeared to be short work; but against such a murky legal backdrop, I wondered whether taking the questions in that order was the right course.

Thus, without having any particular answer in mind, it is fascinating to ask: Was the court acting more modestly by assuming First Amendment protection for the Senator's "message;" or would it have pursued an even smaller agenda if it addressed first the question of hand signals as "speech"? Which is the more the modest and limited approach?

Similarly, mindful that the appellate court would face a “constitutional issue” regardless of how it answered this first question, is the propriety of a statute a better question for it to tackle than the nature of "speech"?

The panel’s complete analysis is accessible here.

Senator Craig’s own statement on the panel’s ruling is accessible here.

Monday, December 08, 2008

Bagenstos: Courts' Focus on Process Doesn’t Aid Disabled Students Much

Among the most interesting posts to the Social Science Research Network in recent weeks is a draft article by Professor Samuel R. Bagenstos of the Washington University School of Law: “Where Have All the Lawsuits Gone? The Shockingly Small Role of the Courts in Implementing the Individuals with Disabilities Education Act.” In this draft, Professor Bagenstos argues that when assessing the role of the courts in implementing the Individuals with Disabilities Education Act, “[p]erhaps the most surprising empirical conclusion is that courts do not have much of a role in implementing the statute.”

Bagenstos points out that the great majority of special education-related litigation is concentrated in just 6 jurisdictions – with the remaining federal court districts handling an average of just 4 special education-related suits each year.

Moreover, as Bagenstos reasons, the applicable standard of review makes for more exacting scrutiny of procedural matters than it does of the substantive benefits conferred upon disabled children. Notes Bagenstos:
Under the [Board of Education v. Rowley] test, the instruction school districts provide to children with disabilities must satisfy all of the statute’s procedural requirements for the development of an IEP, but it need meet only a very minimal substantive standard: It must “permit the child to benefit educationally from that instruction.” The Court specifically rejected the notion that the instruction provided to children with disabilities must provide children with disabilities the same educational benefit as other children receive—or even an equal opportunity to benefit.

The more wide-ranging the case, and the more process-oriented the remedy, the less likely is litigation to be successful in achieving desirable outcomes.
Moreover, Bagenstos disclaims that the current focus on process-oriented matters is an “inherent limitation of courts and judges,” but rather follows from a set of legislative and regulatory policy choices.

A draft of Professor Bagenstos’ article is accessible here. Also, a still-earlier lecture and powerpoint that he rendered on the same topic, at a day-long education conference hosted by the American Enterprise Institute, is accessible here. (Professor Bagenstos' remarks begin at the 4 hour and 22 minute point in the AEI recording – but the entire series of panel discussions is pretty interesting, too.)

Speaker Kelliher Unveils Slimmer Committee Structure

On Friday, Speaker of the House Margaret Anderson Kelliher unveiled a slimmer and more compressed committee structure for the Minnesota House of Representatives.

Among the features of the new committee structure is a retooling of the Biosciences and Emerging Technology and the Local Government and Metropolitan Affairs committees into divisions of other committees; a shuttering of many of the smaller policy subcommittees; and the splintering of civil justice and criminal justice policy jurisdictions between two separate policy committees.

As to this last innovation, Republican and Democratic majorities have drawn the committee jurisdictions both ways in recent years – with civil and criminal justice issues at times being considered in the same committee, and in other years, split between two different panels.

A copy of the Speaker’s announcement of the new committees, and their respective Chairmen and Chairwomen, is accessible here.

Thursday, December 04, 2008

Chanukah Arrives Early This Year

With grateful thanks to the very generous staff of the Minnesota State Law Library, who named Within the Scope its "Blog of the Month."

As someone who is a very frequent visitor to the Law Libray's collection in the Judicial Center, and a great admirer of the materials and services that the Library offers, this is a real honor.

It is like all of the days of Chanukah were rolled into one....

Chief Justice Links Courts Funding with an Orderly Society

Following the announcement earlier today by state forecasters that Minnesota faces a budget deficit in Fiscal Year 2009 of $426 million, and is predicted to experience a $4.847 billion shortfall during Fiscal Years 2010-2011, Chief Justice of Minnesota Eric J. Magnuson issued an important statement. In a letter made public this afternoon, the Chief Justice details how funding for the state courts system is not just another budget line item; but rather a constitutional imperative and indispensible to “an orderly society.”

The Chief Justice’s statement, “Funding Core Government Services Should Be Top Priority,” is reprinted in full below:

"Today's state budget forecast underscores the most important task ahead for legislators - funding core government functions with limited resources. This includes the justice system. Minnesota's courts not only resolve two million cases a year for Minnesota's citizens and businesses, they protect public safety, and play a key role in preserving the rule of law and an orderly society.

To date, Minnesota's courts have proven to be some of the most innovative and efficient in the nation, employing cutting-edge management and case processing strategies. We continue to work closely with our partners in the justice system to identify new ways to improve efficiency. The courts will continue to share in the sacrifices being made at all levels of government. But we cannot innovate our way out of the sizeable funding shortfall the judiciary currently faces. The vast majority of our budget funds the judges and staff who operate a system already straining under the workload. By design, we are a personnel-dependent branch of government with unique constitutional obligations to resolve whatever disputes are brought to our doors.

Of great concern to me is the fact that during economic downturns, court business goes up as conflicts and crime tends to increase. The Minnesota Judicial Branch is already at a tipping point, operating short nine percent of our staff need and having cut services dramatically throughout the state. The very last thing we can afford during a time of unprecedented national and state financial crises is a further cut in funding to the court system. The consequences for public safety, our constitutional obligations, and the people we serve are too great.

We look forward to working with the Governor and the Legislature in the upcoming session to preserve the effective operation of this core government function."

Tuesday, December 02, 2008

Eighth Circuit: Administrative Exhaustion First, Jury Later

In an interesting published opinion issued on Monday, a panel of the U.S. Court of Appeals for the Eighth Circuit turned aside the challenge of a set of Arkansas landowners. The landowners challenged the requirement that they first present their takings claims for review by a state administrative tribunal - the Arkansas State Claims Commission - before being permitted to proceed in federal court.

The landowners argued that the exhaustion requirement violated constitutional guarantees because the state administrative process did not afford the landowners with access to a jury on their claims. Disagreeing, the appellate panel held that only the later federal suit, following exhaustion of administrative remedies, was an “action at law” where the right to a jury trial was guaranteed.

The panel’s complete analysis is accessible here.