Administrative Procedure

Administrative Procedure

Government agencies are part of the Executive Branch of government. Administrative law is largely about the procedure that government agencies must follow in order to take action that will affect private parties. Agencies derive their power from statutes that are written by Congress. An agency’s purpose is to carry out its statutory mission. For example, the Environmental Protection Agency (“EPA”) is an agency, and it derives its statutory missions from the Clean Water Act, the Clean Air Act, and many other statutes.

An agency carries out its statutory mission in two main ways: rulemaking (i.e., promulgating regulations) and adjudications (i.e., issuing orders). In regard to rulemaking, an example would be if the EPA promulgated a rule that all tractor trailers must get at least 30 miles per gallon. An agency rule has the force of law. Therefore, if a manufacturer makes a tractor trailer that doesn’t get at least 30 miles per gallon, then the manufacturer is breaking the law and will be punished accordingly. In regard to adjudication, it is when an agency decides disputed issues with respect to specific parties, decides contested facts, applies the law to the facts, and then concludes with the issuance of an order. Basically, when an agency adjudicates it is acting like a court. If an agency is about to take an action that will adversely affect a specific private party, it might adjudicate the matter in order to give the party a chance to be heard and ensure the action it takes is legal.

Exhaustion of Administrative Remedies

In regard to rulemaking from local governments, many local and state ordinances require that the public is involved at every stage of the local government’s land use planning process. During the development of the “comprehensive plan” (a document used by local governments to regulate the zoning and development of most urban areas), the public usually has the best opportunity to be involved in the planning process. Amendments to the comprehensive plan and specific development permits involve more narrow subject matter and normally a more discrete opportunity to participate. Once a comprehensive plan has been approved, permitting of individual development approvals can occur that are consistent with the plan. These could take the form of a subdivision approval, a conditional use approval, a variance and/or a building permit. Sometimes these actions are purely administrative in nature and provide no opportunity for public input; whereas other actions have an established citizen input procedure and certain required approval steps. Citizens must exhaust all possible administrative remedies before they can sue the agency. Administrative remedies include commenting on proposed rules or having an administrative hearing.

Review of the Administrative Record

The administrative record is the paper trail that documents the agency’s decision-making process and the basis for the agency’s decision. It is important for citizens to voice their concerns to the agency for the purpose of having the concerns preserved in the record. Later on, if a citizen chooses to challenge the agency’s decision by filing a lawsuit, the court will see the citizen’s concern in the administrative record, which is important because the court evaluates the record in order to determine if the agency’s action was “arbitrary and capricious.” If a court determines that the action was “arbitrary and capricious,” then the action will be set aside. The Administrative Procedure Act (“APA”) governs judicial review of a challenged agency decision. Several statutes specify what documents and materials must be provided in an administrative record, depending on the specific statute that is at issue in the case. For instance, Sections 501 through 519 of the Clean Water Act generally lay out the requirements for a satisfactory record with respect to environmental quality.

The administrative record consists of all documents and materials directly or indirectly considered by the agency decision maker. It is not limited to documents relevant to the merits of the agency’s decisions. The record should include any emails, data files, graphs, charts and handwritten notes that are available to the decision maker. The record may also contain privileged or redacted documents due, for example, to attorney-client, attorney work product or Privacy Act privileges.

Public Involvement/Public Hearings

Public involvement refers to the full range of activities that local, state and federal government entities use to engage the American people in the decision-making process. Public involvement begins when individuals and organizations seek information from an agency about a topic or issue, or when they receive information because the agency identifies them as a potentially affected party.

Information exchange is the next step. Depending on the case, an agency may be willing to publicly share data, options, issues and ideas. Then individuals and groups may collaborate with each other and the agency to provide the agency with recommendations for action. Some continue to work with the agency management in reaching agreement by consensus. In the instance where the agency does not willingly divulge information that should be public, you may be able to make a Freedom of Information Act (“FOIA”) request for the specific document that you would like to see.

Access to information is crucial throughout the progression. As individuals and groups move through the steps in the progression, they seek more detailed information, increased access to decision makers, and more influence on the ultimate decisions.

Not everyone chooses to be an active participant in policy or regulatory decisions of the agency. The APA’s goal is to provide opportunities for people to engage at every point along the progression. Individuals and groups decide for themselves whether, when, and how to participate.