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Role of Administrative Agencies - CWA

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Melissa Scanlan

on 17 March 2011

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Transcript of Role of Administrative Agencies - CWA

Role of Administrative Agencies within Three Branches of Government Executive Judicial Legislative Administrative Agencies Agencies
do not fit nicely into 3 branches of gov't
carry out most of the work of the gov't
have powers of all 3 branches of gov't and all 3 branches have substantial power over agencies Congress creates powers of the agencies through legislation.

When agency issues rules to carry out statute, it is legislating. Courts determine if agency has exceeded statutory authority Agencies adjudicate cases Why did Congress create CWA goal to eliminate pollution by 1985 and then not provide EPA with regulatory tools necessary to accomplish goal? CWA = example of enabling statute

authorizes agency to take specific actions

mandates that it take actions

imposes substantive and procedural limits on agency power Dynamic interplay between Congress, agencies, and Courts in interpreting and carrying out the CWA congress has amended CWA over 12 times Republic Steel v. Costle 1972
Congress created S. 301(b)(1)(A)
req'ing all industrial point sources treat wastewater with
Best Practical Control Technology by 7/1/77 1973
Congress required EPA to promulgate standards by 1973 EPA failed to promulgate
W/O standards, issue permits on case by case basis, but some industries face physical impossibility of complying by 7/1/77. 1976
EPA policy:
Issue permits that require compliance with statutory deadline.
Send ltr promising no enforcement if comply by x date - not later than 1979. 1975
Ohio = delegated program = issues permit with compliance date past 7/1/77 1976
EPA vetoes OH permit for failing to comply with CWA deadline 1977. S. 402(d)(2)(B) 1977
6th Cir. H = veto arbitrary and capricious b/c EPA never issued tech. standards for steel industry 1977
Congress reacts by amending CWA, adding 309(a)(5)(B) authorizing EPA to extend compliance until 1979 for dischargers meeting criteria in earlier EPA policy 1978
USSC reviews and reverses - reconsider in light of amendments 1978
6th Cir. reverses and upholds EPA veto:
Interprets new S. 309(a)(5)(B)
Allows EPA to give wiggle room in compliance date, but not beyond 4/1/79 Separation of Powers
Citizen Suits Discussion p. 68-69 Firms take 1 Q each: 1, 2, 4, 5 discuss, report back to class 1. courts review agencies findings of fact, statutory interpretation, and policies

2. courts can order agencies to comply with mandatory duties

3. courts review agency procedure Atlantic States Legal Foundation v. Buffalo Envelope -- (NY 1993) EPCRA case, but similar citizen suit provision to CWA

Does a statute that allows a citizen to vindicate public rights violate separation of powers because this power is reserved to Executive Branch? Fundamental = Congress creates statutory rights and obligations and can determine who enforces them.

Constitutional issue = has Congress reserved unto itself the power to control enforcement of the rights it created p.99 Firms - Q2 - discuss and report back to class veto; enforces and executes laws accord to philos. Enacts laws Pres. executes; holds hearings on Pres' execution of laws; amend laws to direct Pres; Withhold funds; Senate confirms Pres appointees; impeach Creates jurisdiction; sentencing guidelines; amend statute to counter judicial interp.; Senate confirms judicial appointments; impeach Declare statutes unconstitutional Declare exec. action beyond statute or Const. Appoints judges Executive Branch appoints, sets policy direction, and delegates Agency administers statutes Additional check on agency power:
Citizen Suits for failure to perform mandatory duty. S. 505

judicial review of final action. s. 509 Did OH have authority to do this? Did promise not to enforce violate CWA? Did it prevent citizens from suing? only regulates point sources, not nps
funds construction of muni sewage treatment, but did not fund stormwater runoff programs
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