proposed rule, so that a with a fair opportunity to party was not on notice comment and to participate in that its interests were the rulemaking. Thus, so long affected. However, if the as the rule fairly apprises the rule is not substantially public of the subjects and different, then it would be issues, then it satisfies the absurd to require an APA. agency, who is supposed to rely on comments, to change a rule if it does learn something from the comments. Rulemaking- notice & While ex parte Sierra Club v Costle: Where agency action comment Ex parte comm.. communications are industry groups resembles judicial action, prohibited under formal sought to emit sulfur where it involves formal rulemaking and dioxide @ a higher rulemaking, adjudication, or adjudications, they are not level while env. quasi adjudication among prohibited in notice and Groups wanted to be conflicting private claims to a comment rulemaking. Still, free from emissions valuable privilege, the courts have demonstrated at those levels. insulation of the decision concern that ex part maker from ex parte contacts communications may is justified by basic notions of undermine the fairness of due process to the parties the process, prevent the involved. Some oral testing of information communication must be through public comment, summarized in the record to and prevent effective preserve the integrity of the judicial review. One well rulemaking docket. established rule that was (NOTE- this is a hybrid the product of a D.C. Circuit statute, thus question of case, Sangamon Valley v. whether it applies to agency- United States, prohibits ex Agency advocate: this has no parte communications bearing whatsoever, only to where the rulemaking the clear air act involves resolution of Contra-agency: these are the conflicting private claims to basic requirements- court a valuable privilege. referenced integrity of notice) Rulemaking & NEPA Under the National Calvert Cliffs NEPA has no substantive Environmental Policy Act, Coordinating Comm. force, instead, it is only every agency is required to V United States procedural requirements to prepare an environmental Atomic Energy ensure that the agency in impact statement to Comm’n (p. 408) reaching is decisions, will accompany major actions have available, and will with significant carefully consider , detailed environmental effects. This information considering statement forces agencies environmental impact. to consider the potential adverse environmental consequences of their actions. Rulemaking & Executive Orders
proposed rule, so that a party was not on notice that its interests were affected. However, if the rule is not substantially different, then it would be absurd to require an agency, who is supposed to rely on comments, to change a rule if it does learn something from the comments. with a fair opportunity to comment and to participate in the rulemaking. Thus, so long as the rule fairly apprises the public of the subjects and issues, then it satisfies the APA. Rulemaking- notice & comment Ex parte comm.. While ex parte communications are prohibited under formal rulemaking and adjudications, they are not prohibited in notice and comment rulemaking. Still, courts have demonstrated concern that ex part communications may undermine the fairness of the process, prevent the testing of information through public comment, and prevent effective judicial review. One well established rule that was the product of a D.C. Circuit case, Sangamon Valley v. United States, prohibits ex parte communications where the rulemaking involves resolution of conflicting private claims to a valuable privilege. Sierra Club v Costle: industry groups sought to emit sulfur dioxide @ a higher level while env. Groups wanted to be free from emissions at those levels. Where agency action resembles judicial action, where it involves formal rulemaking, adjudication, or quasi adjudication among conflicting private claims to a valuable privilege, the insulation of the decision maker from ex parte contacts is justified by basic notions of due process to the parties involved. Some oral communication must be summarized in the record to preserve the integrity of the rulemaking docket. (NOTE- this is a hybrid statute, thus question of whether it applies to agency- Agency advocate: this has no bearing whatsoever, only to the clear air act Contra-agency: these are the basic requirements- court referenced integrity of notice) Rulemaking & NEPA Under the National Environmental Policy Act, every agency is required to prepare an environmental impact statement to accompany major actions with significant environmental effects. This statement forces agencies to consider the potential adverse environmental consequences of their actions. Calvert Cliffs Coordinating Comm. V United States Atomic Energy Comm’n (p. 408) NEPA has no substantive force, instead, it is only procedural requirements to ensure that the agency in reaching is decisions, will have available, and will carefully consider , detailed information considering environmental impact. Rulemaking & Executive Orders
Administrative%20Law%20-%20Glicksman%20-%20Fall%202010.docx