overton park v volpe united states supreme court 1971 l.
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Overton Park v. Volpe - United States Supreme Court 1971 Road through the park case What was the protest - why did the citizens say this was an improper decision? Citizens protested, said the statute only allowed this if there was no feasible and prudent alternative route

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overton park v volpe united states supreme court 1971
Overton Park v. Volpe - United States Supreme Court 1971
  • Road through the park case
  • What was the protest - why did the citizens say this was an improper decision?
    • Citizens protested, said the statute only allowed this if there was no feasible and prudent alternative route
  • What was wrong with the record?
    • Secretary gave no reasons
feasible and prudent
Feasible and Prudent??
  • What does feasible mean?
  • How can it conflict with prudent?
  • Why is it always cheaper and easier to build roads through parks and public lands?
  • Who are the opposing constituencies?
  • What indicates that this is a compromise law?
district court
District Court
  • District court gave Secretary a summary judgment, affirmed by the Cir.
    • These were based in part on briefs that went beyond the original record
standard of review
Standard of Review
  • Is this a rule making?
  • Is it an adjudication, i.e., was there a trial type proceeding?
    • What about the public hearings?
    • Were they to make decisions or to take input?
    • Were they done by the feds at all?
  • Did the stature require de novo review?
what is the hard look review
What is the Hard Look Review?
  • "thorough, probing, in-depth review"
  • Hard look kicks in after Chevron step 1
  • The court still defers to the agency's policy making role
  • The court looks hard to make sure the agency considered all the relevant factors in making the policy
    • Is this really meddling in policy making?
    • What is the cost to the agency of reviewing lots of factors in depth to satisfy the court?
united states supreme court
United States Supreme Court
  • The United States Supreme Court said that the secretary did not have to make formal findings
    • The record needed to support the action and it could not be supplemented by briefs.
  • If the secretary does not make findings, then the district court has two alternatives:
    • Remand, or
    • Require testimony of agency decisionmakers, effectively building the missing record
  • Why is the second alternative not attractive to the agency?
environmental regulation
Environmental Regulation
  • Permitting new stuff
    • What is the effect of delay here?
  • Enforcing rules against old stuff
    • Who pushes for delay here?
  • Why is it harder to push for action than for delay?
  • Why could the environmentalists get the court to push the agency in the regulators?
atomic power
Atomic Power
  • What are the fears?
    • Administrative delay stopped the industry
    • Hugely expensive plants whose profitability depended on rate setting decisions that are subject to politics
  • What new concerns has shifted environmental fears since the 1980s?
the seat belt saga
The Seat Belt Saga
  • First, there is popular concern about accidents
  • Then interest groups
  • Individual stories - MADD is an example
  • Nader and Public Interest
  • Unsafe at any Speed - 1965
  • Insurance industry
the seat belt saga ii
The Seat Belt Saga II
  • Then Congress passes the Traffic and Motor Vehicle Safety Act
  • 1967 - regulation requiring seatbelts
  • 1972 - realized that people were not wearing the seatbelts
  • Regulation requiring automatic seatbelts or airbags by 1975
the seat belt saga iii
The Seat Belt Saga III
  • Required cars between 1973 and 1975 to have automatic seatbelts or ignition interlocks
  • Chrysler v. DOT affirmed the regs
  • Industry choose interlocks - why?
  • 1974 - Congress passed a law banning regs requiring interlocks and said that all future regs on passive restraints had to be submitted to Congress for legislative veto
    • Chada killed that
the seat belt saga iv
The Seat Belt Saga IV
  • DOT under Ford withdrew the regs
  • DOT under Carter (a few months later) passed new passive restraint regs for 1982 and Congress did not veto them
  • 1979 - Regs were affirmed in Pacific Legal Foundation v. DOT
the seat belt saga v
The Seat Belt Saga V
  • 1981 - DOT under Reagan withdrew the regs because the car companies were going to use automatic seatbelts that could be disconnected.
  • 1983 - Motor Vehicles Manufacturers Assoc. v. State Farm hit the United States Supreme Court
motor vehicle manufacturers v state farm mutual auto
Motor Vehicle Manufacturers v State Farm Mutual Auto
  • Why does State Farm care?
  • What was the key agency law issue in this case?
    • How was this relevant to the transition from Clinton to Bush?
    • How did it drive the midnight rulemaking?
  • What was the rationale for the court's ruling?
  • How is this different from saying that agencies are bound by precedent?
the seat belt saga vi
The Seat Belt Saga VI
  • 1984 - DOT (Libby Dole) promulgated a reg requiring automatic seatbelts or airbags in all cars after 1989, unless
    • 2/3 of the population were covered by state seatbelt laws, and
    • the laws met certain criteria
  • What did some states do?
    • $5 penalty
    • No stop
    • No meaningful seatbelt defense
  • Most State laws did not meet the criteria
the seat belt saga vii
The Seat Belt Saga VII
  • 1997 - most newer cars had airbags
  • 1998 - airbags kill grannies and little kids!
    • Nothing new - known at the time
    • Save many more
  • 1999 - You can get your airbag disconnected
    • Products liability issues?
what else affects automobile safety
What Else Affects Automobile Safety?
  • Drunk driving laws?
  • Anti-lock brakes?
  • Stability control systems?
  • Speeding?
    • Why not lower speed limits?
    • Where do most accidents happen?
  • Limits on teen age drivers?
regulation of automobile gas mileage
Regulation of Automobile Gas Mileage
  • What are the benefits of reduced oil consumption?
    • For individuals?
    • For the country?
  • How do you make cars more efficient?
  • What are the trade-offs?
    • Convenience
    • Cost/safety
    • What limits safety of SUVs?
corrosion proof fittings v u s e p a 947 f 2d 1201 1991
Corrosion Proof Fittings v. U.S. E.P.A., 947 F.2d. 1201 (1991)
  • Rulemaking under the Toxic Substances Control Act
    • This act is not self-implementing
    • Nothing is regulated until the agency set standards
  • How long was this rule in process?
what are the requirements of the act
What are the Requirements of the Act?
  • "Reasonable basis" to believe that there is an "unreasonable risk of injury"
    • What do you consider to decide if the risk is unreasonable?
    • Does this mean no risk?
  • The regulation must be "the least burdensome"
    • What is the burden on the agency when it bans something?
cost risk benefit
Cost/Risk/Benefit
  • What is asbestos really good for?
  • What are the potential risks for substituting other materials?
  • Do we know that these materials are safe?
    • Ever work with fiberglass insulation?
  • How many lives were they going to say?
  • What was this going to cost?
  • Why did the agency really ban asbestos?
judicial review
Judicial Review
  • Why is it easier for the court to second-guess the agency than for the agency to do the cost benefit analysis?
  • Can any risk/cost/benefit analysis be complete?
    • What are the conflicts between discounting to present day costs and trying to monetize future life savings?
  • What was the long term impact of the agency getting hammered in this case?
  • How about when the Corp got hammered over the environmental impact statement for Lake Pontchartrain flood gates?