Yearly Archives: 2019

Why Energy Companies Must Use the Power of Eminent Domain

Jul 5, 2019 Richard PierceAdd a Comment

Energy and Eminent Domain, by James Coleman and Alexandra Klass, is a must read for anyone who is interested in administrative law, government regulation, constitutional law, property law, energy law, environmental law, or climate change. I hope that I have not left anyone out, because I think that anyone who has any interest in law or public policy should read this article. Its substance is important and timely, and its narrative style makes it an easy and pleasant read.

The topic of the article is the use of eminent domain by privately-owned companies that construct oil and gas pipelines and electricity transmission lines. I suspect that many legal academics are not even aware of the routine use of eminent domain by private energy companies. I know that the Justices of the Supreme Court are not aware of that longstanding and ubiquitous practice. In its unanimous April 29, 2019 opinion in Thacker v. TVA, the Court held that TVA is immune from tort suits only when it performs a governmental function and not when it “acts like any other company producing and supplying electric power.”¹ The Court referred to use of the eminent domain power as an illustration of a uniquely governmental function that cannot be performed by a private company: “When the TVA exercises the power of eminent domain, taking landowners’ property for public purposes, no one would confuse it for a private company.”²

Coleman and Klass begin the article by describing the “Kelo Revolution”—the major changes in state laws governing the exercise of the eminent domain power by government that took place after the Supreme Court issued its 2005 opinion in Kelo v. City of New London. (P. 1.) Many people reacted with anger to what they perceived as judicial tolerance of government overreach by allowing government to take private property for purposes that they considered illegitimate. State legislatures and courts responded by narrowing the circumstances in which government can exercise eminent domain power.

The authors contrast government uses of eminent domain with use of eminent domain by private companies:

These examples make it clear that the public, legislative, and judicial eminent domain reform at the time of the Kelo decision were focused squarely on government-initiated economic development takings and that energy, utility, and transportation takings were not perceived as a problem. To the contrary, such takings were used as illustrative examples of acceptable “public uses” even though the property at issue would be placed in private ownership.

(P. 10.) Coleman and Klass then discuss in detail the ways in which takings by private energy companies have increased over the past decade and the recent backlash that those takings have produced. The authors include references to the many federal and state statutes that authorize virtually any private company that wants to construct an oil or gas pipeline or electric transmission line to use eminent domain to obtain the property rights required for the construction.

The authors explain why there has been a dramatic increase in the need to construct new pipelines and transmission lines in the last decade. In the case of oil and gas pipelines, the increased need is tied to the increased use of fracking. The fracking revolution has massively increased the quantity of cheap oil and gas produced in locations that were not previously served by pipeline capacity that is sufficient to transport the oil and gas to markets. In the case of electricity transmission lines, the increased need is tied to the enormous increase in the quantity of electricity that can be generated at low cost through the use of wind farms that are in locations that are a long distance from the major markets for electricity.

Both the increased availability of cheap gas and the increased availability of cheap wind power have been critical to the successful U.S efforts to mitigate climate change. A decade ago, electric generating plants accounted for 38% of U.S. emissions of carbon dioxide—the most important cause of climate change. Over the last decade the U.S. has reduced its emissions of carbon dioxide by much more than any other nation. The International Energy Agency described the U.S. role well in 2017: “The decline was driven by a surge in shale gas supplies and more attractive renewable power that displaced coal. Emissions in the United States [in 2016] … were at their lowest level since 1992.”³

Coleman and Klass then describe the opposition to the use of eminent domain by private companies to construct pipelines and transmission lines that has emerged in reaction to the increase in proposals to construct new pipelines and transmission lines. The opposition comes primarily from landowners and environmental advocacy groups. As the authors describe it:

Notably, the advocacy groups partnering with affected landowners in these eminent domain challenges to oil and gas pipelines have a very different mission than the advocacy groups that represented Suzette Kelo and drove the post-Kelo reforms in the states. The opponents in Kelo were libertarians attempting to limit government power that needs to be limited by defining public use narrowly. For them, eminent domain represents government intrusion into individual rights that needs to be limited by defining public use narrowly. By contrast, the primary advocacy groups opposing fossil fuel energy projects come from the other end of the political spectrum. They advocate broad government intervention in the energy economy to protect the environment by (among other things) limiting the ability to burn fossil fuels. The energy project opponents generally favor government action on behalf of the public interest over private rights. As illustrated below, the environmental advocacy groups have strategically adopted many of the arguments of their libertarian predecessors despite the differences between their philosophies and ultimate objectives.

(Pp. 17-18.) Coleman and Klass attribute similar motives to the parties that oppose the use of eminent domain to construct electric transmission lines: “Despite the renewable energy benefits associated with these new electric transmission lines, states, counties, and landowners often continue to oppose such lines because of their impact on local land values and aesthetics.” (P. 34.) Given the critical role that new gas pipelines and electric transmission lines have played, and will continue to play, in mitigating climate change, it is ironic that the opposition to gas pipelines and transmission lines comes primarily from parties that are trying to protect the environment.

The authors then describe well the powerful arguments that support the of use of eminent domain to take property for public purposes, including for purposes of implementing critical infrastructure projects like pipelines and transmission lines. Notwithstanding those justifications for use of eminent domain for energy transportation projects, they express concern that the opposition to use of eminent domain for energy projects is so vocal and widespread that it “may spur the courts or Congress to adopt further restrictions on eminent domain. Perhaps a challenge to a pipeline could be a vehicle for overturning the Kelo case outright.” (P. 25.)

Coleman and Klass conclude their excellent article by suggesting ways in which proponents of the use of eminent domain for energy transportation projects might be able to blunt the attacks on that use of eminent domain and head off a potentially catastrophic defeat in court or in Congress. They place their proposals in three categories: (1) redefinition of public use in ways that might render the use of eminent domain for energy projects acceptable to more segments of the public; (2) use of the dormant Commerce Clause by states that would benefit from a project as an argument against a state that opposes the project; and, (3) experiments with the use of different methods of compensating landowners or changing the procedures for use of eminent domain for energy projects.

I cannot imagine a better use of time than to read this well-written and important article.

A Broad and Sobering View of Constitutional Safeguards

Jun 3, 2019 Eloise PasachoffAdd a Comment

The September 2018 volume of the UCLA Law Review is a must-read page-turner (or its equivalent for the digital age) for followers of JOTWELL’s Administrative Law section. That volume collects the written essays originally delivered as talks at the Law Review’s symposium on The Safeguards of our Constitutional Republic, organized by UCLA Professor Jon Michaels, along with his colleagues Professors Kristin Eichensehr and Blake Emerson. As Michaels writes in his introductory essay for the volume, “The first two years of the Trump presidency have been marked by scandals, standoffs, travesties, and tragedies. Customs have been flouted, compacts broken, laws transgressed, responsibilities ignored, and individuals and communities threatened and debased.” In their contributions for the symposium, participants—distinguished public law scholars and civic institutional leaders from different corners of the nation—collectively “explored whether we are in a time of simple flux or full-blown crisis; whether any such crisis rises to the level of a constitutional—as opposed to just a political or cultural—dislocation; and how we can steer the ship of State back on course.”

While readers would be rewarded for perusing all of the essays, the one I want to focus on here is Mariano-Florentino Cuéllar’s essay, From Doctrine to Safeguards in American Constitutional Democracy, which he presented as the keynote address at the symposium. Justice Cuéllar (on the Supreme Court of California since 2015, and before that a member of the Stanford Law School faculty) soberly cautions “against facile rule-of-law optimism” about “the prominent role of courts in setting constitutional constraints on official power.” (P. 1400.) While Justice Cuéllar rightly does not name President Trump in the essay (in fact, he alludes to the “[d]ilemma” of “a judge seeking to thread the needle at a UCLA symposium when alluding to transgressions of norms by elected officials” (P. 1422)), the animating concern of the essay resonates closely with contemporary challenges in the administrative state and our republic more generally. Whether the legal question centers on arbitrary-and-capricious review, statutory authority, or constitutional permissibility, judicial review of the Trump administration’s actions is a daily occurrence, in ways both familiar and breathtaking.

Justice Cuéllar asks us to consider whether judicial review is enough—not simply to cabin the chief executive and his officials but to sustain “the constitutional order.” It is not, he concludes. To believe that it is reflects “an unrealistic worldview in which courts are assumed capable of shouldering the primary responsibility for protecting the constitutional order despite fraying norms, weak institutions, economic uncertainty, and interference from geopolitical rivals.” His account is important. It provides yet another reason why those of us who teach and write in public law fields like administrative law must focus on institutions beyond courts.

The headers of each of the essay’s five sections provide a high-level set of takeaways for the piece—the elevator pitch for the tightly constructed argument that follows. Constitutional Safeguards are Undertheorized says Part I. We might think of the Steel Seizure case as a primary example of such a safeguard, where the Court held that “the president did not have the power—in the midst of what he considered a national security emergency, but without any apparent statutory authority—to seize private property.” (P. 1404.) But that view ignores other contemporaneous public activities (federal loyalty screenings, state Jim Crow laws) that are constitutionally concerning but were for a long time legally sanctioned. A “more robust understanding of American constitutional democracy” must include attention to geopolitical considerations, nonjudicial institutions, and “the evolving norms and values of people with meaningful influence over the use of public power.” (P. 1407.)

Of course, says Part II, Judicial Institutions Matter to Constitutional Safeguards. We would be foolish to think otherwise. But, Part III continues, Safeguards Depend Even More on Nonadjudicatory Factors. For example, “the existence of some measure of shared public sentiment supporting constitutional democracy—assigning value to its larger project despite the costs of accepting leaders one may disdain or even loathe—seems valuable in no small measure because constitutional democracy’s underlying logic is precarious without such sentiment.” (P. 1415.) That shared public sentiment depends in part on the extent of “economic distress,” among other varied conditions, however. “[G]overnment’s demonstrated capacity to mitigate risks and deliver reasonably effective social outcomes” is thus an important part of “[t]he public’s perception that safeguards matter.” (P. 1420.) Also important are “norms and institutions,” and the symbiotic relationship between them, that bolster the existence of shared public sentiment about key features of constitutional democracy.

Meaningful Constitutional Safeguards Raise Nuanced Institutional Design and Implementation Questions, Part IV elaborates. How, for example, should we think about the value of “[c]ourt decisions and other official pronouncements of law” once we understand that their “importance is contingent and limited by the relevance of other institutions with competing agendas, the crucial role of groups and the public who must accept certain broad norms, and the realities of life in a noisy, uncertain world”? (P. 1421.)

For one thing, we should stop assuming that “American institutions are fundamentally resilient merely because the country has seen much worse.” (Id.) It is easy to see how bit by bit, norms that support these institutions can be chipped away—a point more fully examined in an essay by Josh Chafetz and David Pozen in the same UCLA volume. It is therefore important to acknowledge that, while “actors and institutions” like “universities, courts, individuals with ties to law enforcement” must generally “stand apart from partisan politics,” norms bolstering constitutional democracy are nonetheless “largely in the hands of public officials willing to send costly signals of their concern by speaking out, resigning, or going against perceived interests.” (P. 1422.) Laws governing our “communications infrastructure,” including internet platforms like Facebook and YouTube, are additionally a critical but underappreciated part of our constitutional safeguards.

For another thing, we should acknowledge that “some processes requiring a measure of insulation from the rough-and-tumble of ordinary politics—whether they involve adjudication or rulemaking—may also benefit from engagement with the often-messy world of public discourse and political action.” (P. 1424.) This engagement may involve doctrine (“cautiously, as in modern procedural due process doctrine and perhaps in the incorporation of concerns for institutional stability in statutory interpretation” (Id.)). It may involve public statements by lawyers, policymakers, and judges about important “norms of civility, restraint, comity, and decency underlying the institutions within which they are operating, or to which they are contributing through their work” (where, of course, “ethically appropriate”). (Id.) At the very least, it should involve clarity in judicial opinions to make concrete what legal “justifications imply about society’s painful trade-offs and subtle vulnerabilities.” (Id.)

In the end, Part V concludes, Constitutional Democracy’s Strength Depends on Recognition of Its Fragility. Unlike authoritarian systems, ours is one with “fractured, contradictory ideas about social welfare,” which acknowledges a troubling “gap between aspirations and reality.” (P. 1426.) When the foundations that protect this system are shaken— “safeguards rooted in public democratic sentiment, the opposition’s legitimacy, state capacity, and resilience against economic and security shocks”—it is not simply “wrong policy choices or stark ruptures of doctrinal sensibility” that are at issue: “The silent but no less serious specter is the slow undoing of extraconstitutional factors on which constitutional doctrine—and ultimately, law itself—depends for relevance.” (P. 1427.)

We can be thankful, as Chief Justice Roberts exhorts, for an independent judiciary. But Justice Cuéllar offers serious caution about the potential for overreliance on formal law and doctrine while paying insufficient attention to broader societal and institutional safeguards of our democracy. Our teaching in law schools, and in other educational institutions, should take this caution to heart.

Data Processing Detective Story

Apr 30, 2019 Richard MurphyAdd a Comment

After the slog of teaching constitutional standing—Lujan, Massachusetts, Freedom from Religion, Akins, Spokeo, and the rest of that crowd—it is always a relief to get to statutory standing. “Here’s the deal,” I say to the class, “statutory standing is just a matter of finding a statutory right of action to challenge agency action. You can find that ticket to judicial review in many enabling acts. But the most important one for our purposes is the APA’s right of action established by 5 U.S.C. §§ 701-706. Section 702 says you can use that right of action so long as you have ‘suffer[ed] legal wrong because of agency action, or [have been] adversely affected or aggrieved by agency action within the meaning of a relevant statute.’ The Supreme Court has told us that a plaintiff can qualify under the ‘adversely affected or aggrieved’ prong of § 702 by claiming that agency action has harmed interests that ‘arguably’ fall within the ‘zone of interests’ protected by a statute or constitutional provision that the plaintiff asserts the agency action has violated. And the Supreme Court has also told us, a whole bunch of times, that this arguably-within-the-zone test for invoking the APA’s right of action is super-easy to satisfy.”

Thanks to reading Caleb Nelson’s splendid article, “Standing” and Remedial Rights in Administrative Law, I see that things are not so simple as I thought. The major project of Professor Nelson’s article is to explain how the consensus understanding of the expansive reach of remedial rights under the APA evolved from a profound misreading of the source of the arguably-within-the-zone test, Justice Douglas’s opinion for the Supreme Court in Association of Data Processing Service Organizations v. Camp. The upshot of Professor Nelson’s analysis is that Data Processing, properly understood, does not stand for the proposition that satisfying the arguably-within-the-zone test is enough for a plaintiff with constitutional standing to invoke the APA’s right of action. To get to this conclusion, Professor Nelson takes a deep dive into the evolution of standing doctrine during the middle half of the twentieth century. The result is a terrifically lucid and engaging account, filled with telling details—notably including Professor Nelson’s recounting, based on both published opinions and internal correspondence, of the doctrinal duel between Justice Douglas and Justice Brennan over the framework for standing in Data Processing and its companion case Barlow v. Collins. (Pp. 37-52.)

Part I of the article sets the stage by offering a concise and informative account of the evolution of judicial review of agency action during the decades of the twentieth century that preceded Data Processing. Then as now, judicial review might take the form of nonstatutory review—e.g., a plaintiff might sue an officer in equity to enjoin illegal action. Professor Nelson emphasizes that, to make use of this device, a plaintiff needed to show that, in addition to violating the law, an officer’s action invaded the plaintiff’s “legal rights.” Complicating matters, however, he also observes that “[t]he Supreme Court never fully specified the criteria for determining whether a particular statutory or constitutional provision gave ‘legal rights’ to particular people.” (P. 13.)

Alternatively, a plaintiff might be able to pursue statutory review, i.e., make use of an express right of action created by Congress for review of particular agency actions. For instance, § 402(b) of the Communications Act of 1934 authorized “any…person aggrieved or whose interests are adversely affected by any decision of the [Federal Communications] Commission granting or refusing any such application” to seek judicial review from the D.C. Circuit. Unlike nonstatutory review, a person invoking statutory review did not need to establish that she had suffered a “legal wrong” or invasion of a “legal right.” Such a plaintiff just needed to satisfy the requirements that Congress had spelled out for using the statutory right of action.

Then along came § 702 of the APA, which provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” At first, courts and commentators, for the most part, interpreted this provision as carrying forward the rights to judicial review available before the APA’s enactment. The first prong, covering persons who had suffered “legal wrong,” carried forward the availability of nonstatutory review; the second prong, covering persons “adversely affected or aggrieved,” recognized that plaintiffs might make use of express statutory review proceedings where available. (Pp. 23-27.)

Before Data Processing, two doctrinal impulses worked to broaden availability of the APA’s right of action. First, the Warren Court developed a practice of finding implied rights of action to challenge agency statutory violations that seemed premised on a very generous understanding of the scope of plaintiffs’ “legal rights.” (P. 29.) Second, Professor Kenneth Culp Davis pushed for a far more expansive understanding of the reach of the “adversely affected or aggrieved” prong of § 702. According to Professor Davis, rather than merely acknowledging that a plaintiff might invoke statutory review, this prong of § 702 instead authorized any person “who is in fact adversely affected” by illegal agency action to obtain relief through the APA. (P. 25.)

Whew. That’s a lot of ground to cover. The key thing to see for the present purpose, however, is that, before Data Processing, to satisfy § 702 and use the APA’s right of action, a plaintiff had to either demonstrate that she had suffered “legal wrong” or else satisfy the terms of a particular enabling act’s statutory right of action.

At last we come to Part II and Professor Nelson’s detailed dissection of Data Processing itself. Most readers of JOTWELL’s Administrative Law page will recall that Data Processing involved a challenge to a decision by the Comptroller of the Currency that allowed national banks to perform data processing services incidental to their banking services. The plaintiffs were, just as one might expect, in the data-processing business. They contended that the Comptroller’s decision conflicted with provisions of the National Bank Act and the Bank Service Corporation Act of 1962. Justice Douglas, writing for the Court, explained that standing has both constitutional and non-constitutional dimensions. The data processors satisfied the constitutional requirement for standing, rooted in Article III’s case-or-controversy limitation, as they had plainly suffered an “injury-in-fact” due to increased competition from banks. As for standing’s non-constitutional requirement, Justice Douglas explained that this turns on “whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” The Court concluded that the plaintiffs’ interest in avoiding competition from banks “arguably” fell “within the zone of interests protected” by § 4 of the Bank Services Act. Therefore, the plaintiffs had what we have come to call statutory standing.

The key to Data Processing is to understand just what Justice Douglas meant by “standing.” As Professor Nelson explains, before Data Processing, courts had often used this term when assessing whether a source of law gave a plaintiff a right of action in the circumstances of a case. (P. 5.) By contrast, in Data Processing, Justice Douglas intended the non-constitutional dimension of “standing” merely to screen out plaintiffs who were “not even in the ballpark of having a right of action.” (P. 107.) He did not contemplate that the lax arguably-within-the-zone test would determine whether a plaintiff actually had the proper type of “legal interest” to support a remedial right to challenge a given violation of law.

Over time, however, courts began treating Data Processing’s arguably-within-the-zone test not as a preliminary “ballpark” screen but as a definitive test for determining availability of the APA’s right of action. Characterizing the consensus that evolved on this point after about 1980, Professor Nelson writes, “[f]or more than a generation,…courts have assumed that when an agency violates statutory or constitutional limitations on its authority, everyone who is suffering ‘injury-in-fact’ and whose interests are even ‘arguably’ within the relevant ‘zone’ can obtain relief under the APA (unless a more specific statute supplants this right of action.” (P. 4.) He adds that, in keeping with this expansive understanding of Data Processing, some of the very brightest lights of administrative law have characterized this opinion as a “watershed” (Mashaw), a “Revolution” (Justice Breyer), and an “Earth-Shattering Kaboom” (Lawson). (P. 4.)

But, according to Professor Nelson, Data Processing itself did no such kabooming. More particularly, properly read, Data Processing does not stand for the proposition that any plaintiff who satisfies the arguably-within-the-zone test can, without showing anything more, lay claim to statutory standing under the APA. Instead, in keeping with earlier law, Data Processing contemplates that a plaintiff, at least absent help from an express statutory right of action, must still demonstrate that she challenges an agency action that did harm to her cognizable “legal interests.” On this view, statutory standing to use the APA’s right of action does not extend nearly so far as most everyone has been saying it does for the last few decades.

After Part II’s dissection of Data Processing, Part III turns to exploration of how and why this opinion came to be so widely misunderstood as well as some “ironic consequences” of the modern reading. (Pp. 68-69.) As with the rest of the article, Professor Nelson tells an intricate and detailed story—interweaving judicial precedents and academic work of another era—in a remarkably engaging way.

Speaking of ironies, I would just like to share a half-baked thought about constitutional standing that crossed my mind after reading “Standing” and Remedial Rights in Administrative Law a couple of times. According to Professor Nelson’s account, at the time of Data Processing, Justice Douglas intended “standing” to function as a preliminary screen with modest constitutional and statutory requirements. Justice Brennan pushed for an even more modest framework that would have confined the “standing” inquiry to the question of whether a plaintiff had suffered an injury-in-fact sufficient to satisfy Article III. On either approach, constitutional standing would not do a lot of work. The great misreading of Data Processing, however, made remedial relief generally available under the APA without regard to whether agency action infringed on a plaintiff’s “legal rights.” Might eliminating the legal rights inquiry from statutory standing have left greater space for it to complicate constitutional standing? We speak of constitutional standing as requiring an “injury-in-fact,” but we all know that this requirement might better be styled as an “injury-in-law”—i.e., the type of injury that the law is willing to recognize as sustaining standing.¹ If statutory standing had stayed a bit tougher, might constitutional standing have had less work to do and remained a little easier? That might have been nice.

In closing, “Standing” and Remedial Rights in Administrative Law is a terrifically informative and well-written article that makes the development of the doctrine of statutory standing and the availability of the APA’s right of action into a page-turner.

In Praise of Practical Scholarship

Apr 2, 2019 Kristin HickmanAdd a Comment

In 2011, Chief Justice John Roberts notoriously criticized the legal academy when he declared at a judicial conference, “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” Legal scholars were unimpressed, to say the least, by Chief Justice Roberts’s flippant dismissal of their work. Perhaps the best response was Professor Orin Kerr’s tongue-in-cheek Green Bag essay in which he documented that, in fact, the Bulgarians really only became interested in Kant’s pronouncements in the late-19th Century and even then mostly ignored his ideas as “obscure and awkward.” Nevertheless, although Chief Justice Roberts’s criticism was a gross exaggeration, like most such overstatements it grew from at least a small kernel of truth—echoing similar, if more soberly presented concerns raised almost twenty years earlier by D.C. Circuit Chief Judge Harry T. Edwards about a “growing disjunction between legal education and the legal profession.”

Legal scholars know, of course, that quite a lot of the scholarship they collectively produce is of use to practitioners, courts, and legislators. Simultaneously, however, legal scholars must, and I think do, acknowledge that not all legal scholarship is useful or of interest to nonacademic readers. Legal scholars sit at the sometimes-awkward intersection of a larger academic community and the practicing bar, each with its own goals, values, norms, and needs. The fact that some legal scholarship appeals more to the former than the latter audience merely reflects that reality and does not diminish its value. Nevertheless, it is in our own interest as legal scholars to counter the narrative promoted by Chief Justice Roberts and others by calling attention to legal scholarship that may be of use to the more practical of our two audiences, even while it appeals to the more academic as well. Nick Parrillo’s groundbreaking work on federal agency guidance is an exemplar of this kind of legal scholarship.

As administrative law scholars know, federal agencies routinely issue informal pronouncements articulating their views regarding what the law requires of regulated parties. These informal pronouncements carry many distinct labels—to quote Parrillo, “advisories, circulars, bulletins, memos, interpretive letters, enforcement manuals, fact sheets, FAQs, highlights, you name it.” (P. 167.) Administrative Law experts commonly refer to such informal pronouncements collectively, irrespective of label or category, as “guidance.” In the parlance of the Administrative Procedure Act, guidance is categorized as either interpretative rules or general statements of policy (aka policy statements). As such, guidance is exempt from notice-and-comment procedures designed to facilitate public participation and transparency, and generally is understood to be nonbinding. Nevertheless, prudent regulated parties pay close attention to guidance as indicative of agency thinking. And regulated parties commonly complain that agencies apply guidance inflexibly, so that it is practically if not legally binding. Agency use—and arguable abuse—of guidance to direct regulated party behavior is a perennial topic of discussion and concern among administrative law scholars, courts, legislators, and practicing lawyers.

As Parrillo notes in his article, however, the scholarly literature on guidance has focused on doctrinal and theoretical approaches to distinguishing between legislative rules that must be adopted using notice-and-comment rulemaking procedures and guidance that is exempt from those procedures. Much has been assumed about how agencies and regulated parties think about and utilize guidance. Parrillo’s article fills this void.

Parrillo’s article grew from work that he performed initially on behalf of the Administrative Conference of the United States, or ACUS. Specifically, Parrillo interviewed 135 individuals working in government, industry, and nonprofit organizations across eight different regulatory fields, seeking to assess the role of guidance in the day-to-day decision-making and operations of agencies and regulated parties. The initial result of the study was a 200-page report for ACUS, rich and thorough in its detail, and a set of recommendations for agency use of policy statements that ACUS adopted and published in the Federal Register in 2017. ACUS recommendations are deliberately nondoctrinal, avoid making definitive legal conclusions, and are couched in terms designed to persuade agencies to adopt them. Although Parrillo’s ACUS report and his article overlap considerably, the article format offers more latitude for academic reflection.

Parrillo’s article finds that regulated parties have a legitimate basis for complaining that even nonbinding guidance really is more binding than not. Regulated parties often, though not always, face tremendous pressure to comply with guidance. Agencies often, though not always, exacerbate the difficulty by applying guidance inflexibly.

Regulated parties routinely find themselves in a position of needing to adhere to guidance—and not just to avoid becoming the target of an agency enforcement action, although enforcement is an obvious concern. For example, many regulated parties must pursue agency pre-approval processes to obtain permits, licenses, certifications, and the like. Complaining about or failing to adhere to agency guidance can result in delays, if not outright denials. Also, regulated parties are repeat players before agencies, meaning that they must maintain good working relationships with agency officials that might be undermined by complaining about or failing to adhere to agency guidance. For some regulated parties, the perceived need to maintain good working relationships with agency officials in turn prompts internal regulatory affairs employees to push for compliance with guidance, even where a good case may be made at law that a particular guidance document exceeds the agency’s authority.

In turn, agency officials are often inflexible rather than open-minded in their application of guidance. Parrillo rejects, however, the common conventional wisdom that agencies just want to bind regulated parties while avoiding the hard work and inconvenience of notice-and-comment procedures. Instead, he observes, agency inflexibility more often comes from demands by regulated parties, Congress, the courts, and nearly everyone else demands that agencies act consistently. Departures from guidance may be seen as ad hoc and unprincipled, contrary to statutory and political expectations that agencies not act arbitrarily or capriciously. In other words, the same parties that complain about agency inflexibility impose demands that make such inflexibility more likely.

For all of the above, Parrillo suggests that agencies pursue what he labels principled flexibility—meaning “that agency officials make departures from guidance, but for each departure, they give a written explanation that is accessible to other agency officials and to regulated parties, with the understanding that the exception thereby becomes generally applicable to like facts going forward.” (P. 241.) The result, he contends, would be “a body of rationally evolving precedent that informs future decisions about departure requests.” Parrillo acknowledges that this suggestion faces its own obstacles. Evaluating and documenting principled departures from guidance is more time consuming and expensive than simply applying guidance inflexibly. Regulated parties seeking pre-approval may prefer speed over flexibility, and thus may resent bearing the burdens of principled flexibility. Additionally, Parrillo recognizes that some inflexibility may simply be due to genuine faith by agency officials that the guidance in question is simply right. In such instances, Parrillo suggests that such cases represent “the archetypal scenario calling for legislative rulemaking.” (P. 262.) He encourages agencies to resist this sort of inflexibility and expend the resources necessary to pursue a policy of principled flexibility with respect to guidance.

Parrillo’s article, and the ACUS report from which it draws, are too full of interesting and useful observations to do justice in this short review. Together, they will provide a useful resource for anyone interested in the topic of agency guidance for years to come. His observations are not only insightful but balanced—reminding those of us working in this administrative law and regulatory space that there is more than enough “blame” to go around for the deficiencies of the status quo. Meanwhile, Parrillo’s proposal for a principled flexibility is eminently sensible as well as doctrinally sound. One can only hope that agencies take up his suggestion, and if they do, that regulated parties do not shortsightedly thwart such efforts.

Looking Inside Multi-Member Agency Statutory Interpretation

Mar 1, 2019 Christopher WalkerAdd a Comment

Inspired by Lisa Bressman and Abbe Gluck’s pioneering empirical study on how congressional staffers approach drafting statutes, I spent months in 2013 surveying federal agency rule drafters on how they interpret statutes and draft regulations. Among its many methodological limitations, my study focused exclusively on agency rulemaking. Agencies, of course, interpret statutes in a variety of other regulatory contexts, including adjudication, enforcement, guidance, permitting, and monitoring—just to name a few. Indeed, it’s fair to say that most agency statutory interpretation takes place outside of the rulemaking context.

Thanks to an exciting new voice in administrative law, we now have some more light shining into this black box of agency statutory interpretation. In An Empirical Examination of Agency Statutory Interpretation, Amy Semet turns her attention to agency adjudication and, in particular, how the multi-member National Labor Relations Board (NLRB) approaches statutory interpretation.¹ To conduct this empirical assessment, Semet reviews more than 7,000 cases that the NLRB heard over two dozen years (1993-2016) and three presidential administrations (Clinton, Bush 43, and Obama). This study provides a treasure trove of insights into agency statutory interpretation. Here are a few of the highlights:

First, as a preliminary matter, whereas Semet read more than 7,000 NLRB decisions, very few actually dealt with statutory interpretation. In fact, the number is 121 majority decisions, or 2% of all decisions in the dataset. Semet explains (Pp. 26-28) why this figure might be underinclusive. Even if somewhat underinclusive, however, it may come as a surprise to many administrative law scholars—though probably not many regulatory lawyers—that only a small part of the agency’s adjudicative docket actually implicates novel questions of statutory interpretation. The bulk of the NLRB’s docket merely applies (or at least purports to apply) existing precedent to new facts and circumstances.

Second, the NLRB is a textualist interpreter, but perhaps in name only. Of the 121 majority decisions implicating statutory interpretation, the NLRB engages in some sort of textualist analysis roughly two thirds of the time. Yet, Semet codes (P.32) the statutory text as the “most determinative factor” in less than one in ten cases (8%). Indeed, the NLRB uses non-textualist methods about 95% of the time, including reference to legislative history in roughly two in five majority decisions. Similarly, the NLRB cites policy or practical considerations in 90% of the majority decisions. These findings are consistent with the growing scholarly call for federal agencies to engage in more purposivist statutory interpretation than their judicial peers. One may expect, moreover, that Republican and Democrat NLRB members rely more on textualism and purposivism, respectively, than their political counterparts. Semet finds (Pp. 33-34) some descriptive evidence of this, but none of it is statistically significant.

Third, precedent matters. When I teach 1L legislation and regulation, I often focus somewhat myopically on the distinction between textualism and purposivism and the various tools of statutory interpretation utilized by either/both interpretive schools. Within that interpretation toolbox, I seldom focus on precedent. Yet precedent drives so much of statutory interpretation. That is certainly true at the NLRB. Semet codes (Pp. 32-33) nine in ten NLRB majority decisions as viewing case law as “determinative or influential in the outcome.” Most of the time the NLRB cites its prior decisions, but three in four NLRB majority decisions also cite at least one Supreme Court decision that influences the agency’s interpretation. In one in ten cases, the NLRB “mirrors” a circuit court’s statutory interpretation.

Fourth, legislative history is a double-edged sword. A regular textualist criticism of the use of legislative history is that it encourages the interpreter to advance a broader interpretation of the statute than the plain text would allow. That observation is not without force. But, as Semet finds (Pp. 47-48), legislative history can also narrow the scope of the statutory text. Indeed, in most of the cases where the NLRB relied on legislative history, it did so to more narrowly interpret the statute.

Finally, Republicans and Democrats do not usually agree. Although statutory-interpretation cases make up less than 2% of Semet’s database, when a case does involve statutory interpretation, it usually sparks a dissent—oftentimes a very long dissent. In about three in four NLRB statutory-interpretation cases (77%), the majority decision is accompanied by a dissent. Indeed, Semet finds (P.56) the rate of dissenting has increased from 76% in the Clinton Administration to nearly 90% in the Bush 43 and Obama Administrations. Semet exhaustively details (Pp. 56-65) how the interpretive approaches differ in these various “dueling” opinions, and that section of the article (Part II.D) is definitely worth a close read.

What should we make of these findings?

In Part III of the article, Semet joins the scholarly call, discussed above, for agencies to engage in more-purposivist interpretation to leverage their comparative policy expertise. Having read two dozen years of NLRB decisions, she also seems pretty dissatisfied with statutory interpretation being advanced through adjudication, arguing that rulemaking may be the better vehicle. (As I explore elsewhere, similar arguments could be made for affording Chevron deference only to interpretations promulgated via rulemaking, and not to those advanced in adjudication.)

Semet is rightly cautious about drawing broader conclusions about agency statutory interpretation from her study. After all, while this dataset is impressive, it sheds light on only one agency adjudicative system, and a multi-member commission at that. Much more empirical work needs to be done to understand how agencies approach statutory interpretation in their regulatory activities.

That said, Semet’s study is an important contribution to this literature and has broad implications for administrative law and regulatory practice. Understanding how federal agencies interpret statutes is critical for, among other things, assessing the principal-agent relationship between Congress and agencies and informing how courts should subsequently review such agency statutory interpretations. I look forward to reading more from this promising new voice in our field.