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
  vaguenessLongview 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, LI,
  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
• Persons 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

• Landowners neighbor files a complaint that
  Landowner burned a pile of tires.
• Ecology investigates and finds a smoldering and
  smoking pile of tires on Landowners 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 Mines 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 Ecologys permit denial to the PCHB
• The parties engage in dispositive motion practice
• Partial summary judgment order issued
• Mine appeals the PCHBs summary judgment order to
  King County Superior Court

26
Case Study Mine v. Ecology

• Can King County Superior Court accept the Mines
  petition for judicial review of the PCHBs
  partial summary judgment order?
• Has Mine exhausted administrative remedies?
• Do any exceptions to the exhaustion of
  administrative remedies rule apply to Mines
  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
  Ecologys enforcement order

28
Case Study PCHB Decision Authority

• The PCHBs 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 Generals Office
• 360/586-6750
• maiab_at_atg.wa.gov