Applied Administrative Law:Oil Spills and Water Law

Neal R. Axton, Information Resources

Summer, 2010

Roadmap• Sources–eCFR from GPOAccess–Regulations.Gov

• Cyclical Nature of Law• Executive Agencies–CEQ and NEPA Revisied–MMS–Oil Pollution Law–Remediation and Water Pollution

Free and Current!

Cyclical Nature of LawCongress

Legislation &Codification

Executive (President)

Veto & Signing Statements

Executive (Agencies)

Regulation &Enforcement

Judiciary

Interpretation &Gap Filling

Executive Branch DocumentationCongress

Legislation &Codification

Executive (President)

Executive Orders

Executive (Agencies)

Formal & Informal

Rule-Making

Judiciary

Injunctions& Invalidation

Informal Rule-making Process•Advanced Notice of Proposed Rule-Making •Proposed Rule•Comment Period•Final Rule•Variations on a theme

Some Other Options

• Second Proposed Rule• Proposed Rule with no Final Rule• Interim Proposed Rule• Interim Final Rule• Executive Orders

http://bit.ly/qMYiM

GSA Regulatory Help: Reginfo.Gov

Oil Spills and Water Law

• Will I be tested over this?

• Administrative procedure

• Administrative policy

• Interface of statutes, regulations,

cases, politics & public policy

Environmental Impact Statements

The federal Minerals Management Service, which regulates offshore oil and gas production and collects reports on spills as small as a single barrel, was so confident of [deep sea drilling] system that it exempted BP from filing an environmental impact statement for the Macondo operation.

- Peter Coy and Stanley Reed, Lessons from the Spill, Business Week, May 10, 2010, available at http://bit.ly/9jIAIM

Simple Search

Filter

Metadata!

Federal Register Document Number• Formerly Regulation Identification

Number or RIN• Tracking Iterations of Rule–Proposed Rule–Amended Proposed Rule– Second Proposed Rule– Interim Final Rule– Final Rule

Searching by FR Number

Unified Agenda

Regulatory Agenda

• What do agencies plan to regulate in the next six months• What regulations need updated• Notice • Fair Warning to Counsel

• Back to our story…

Searching by FR Number

Preamble – Unique to Federal RegisterNot included in CFR (Only Final Rule)

NEPA Website

Proposed Rules

Proposed Rules Redux

Categorical Exclusions

Categorical Exclusions

Cyclical Nature of LawCongress

Delegate Power to Agency

Executive (President)

Executive Orders

Executive (Agencies)

Implement Congress’ Vision

Judiciary

Ensure Agencies do not exceed

authority

Problems at MMS Denver Office

MMS Oil and Gas in Gulf – Criminal Charges

Cyclical Nature of LawCongress

Delegate Power to Agency

Executive (President)

Executive Orders

Executive (Agencies)

Formal & Informal

Rule-Making

Judiciary

Hold Agencies Accountable

[N]othing is so local as a drop of water, or so national as what we do with it.

- Representative Sidney R. Yates (D-IL)

111 Cong. Rec. 8674 (1965) (from the House floor debate on the Water Quality Act of 1965).

The Commonwealth

Long Legislative Interest in Water Safety

• The Rivers and Harbors Act of 1899: 30 Stat. 1151 •Public Health Service Act of

1912: 37 Stat. 309 •Oil Pollution Act of 1924:

43 Stat.604

Pollution Revisited•Oil Pollution Act of 1961: 75

Stat. 402•Oil Pollution Act

Amendments of 1973: 87 Stat. 424•Oil Pollution Act of 1990: 104

Stat. 484

Aliases•Oil Pollution Act of 1990•OPA 90•H.R. 1465 (101st Congress)•Pub. L. 101-380•104 Stat. 484•33 U.S.C. 2701 et seq.•33 U.S.C. §§ 2701-61

Citation Review

• Public Law (Pub. L. or P.L.)• Statutes At Large (Stat.)

• Public Law 101-380, 104 Stat. 484 (1990)• Public Law 101-380 was 380th law adopted

by 101st Congress.• It is published in the Statutes at Large in

Volume 104 on Page 380

• Public Law 101-380 became law in 1990.• Remember that Congresses span two

calendar years.

Evolution

Why use Statutes at Large versus public law number?

Why use Statutes at Large versus United States Code?

Why not use United States Code Annotated?

Memes & Memory

• Popular Names • Populist Names

• Oil Pollution Act or OPA

Hein

Popular Name on Hein

Popular Name Table on Westlaw

Popular Name Table

Enactments

Process of Codification

Law Revision Counsel of House of Representatives

Westlaw Version of Public Law

Damages

Cyclical Nature of LawCongress

Legislation

Executive (President)

Executive Orders

Executive (Agencies)

Formal & Informal

Rule-Making

Judiciary

Construction of the Law

Remediation &Federal Water Pollution Control Act

• Clean Water Act of 1977, aka CWA–Public Law 95-217 –Codified at 33 USC 1251 et seq.

• CWA amended and strengthened the Federal Water Pollution Control Act, Public Law 80-845, 62 Stat.1155 (1948).

• Legacy of Oil Spill will be polluted waters.

Clean Water

Everything that man himself injects into the biosphere - chemical, biological or physical - can ultimately find its way into the earth's water. And these contaminants must be removed, by nature or by man, before that water is again potable.

- Charles C. Johnson, Jr., Asst. Surgeon General

• Water Quality Standards (WQS)• Designated Uses (DU)• Higher use = cleaner water–Drinking, Swimming– Fishing, Farming

• Lower Use = more polluted– Industrial Discharge–Thermal Transfer

1972 CWA Innovations

Multiple Designated Uses

Source: http://bit.ly/12fdjG

Cleaning the Water• National Pollutant Discharge Elimination System

• Permits Required to Discharge Waste Water– Point Sources • Factory Discharge• Sewage Discharge• Feedlot Discharge• Thermal Discharge

• Exempted by Statute from NPDES– Non-Point Sources • Irrigation• Fertiliser• Herbicide• Insecticide

• Grey Area: Irrigation Return Flows, exempted

Highlights of CWA

• Section 303 & 307 – EPA defines pollutants– 1972 law gave EPA 90 days to define– EPA missed deadline

• Once pollutants identified, States implement Total Maximum [Waste] Daily Loads

• State TDMLs to be approved by EPA• If not approved, EPA to create TDML – (Section 402 takeover provision)

• No staffing for EPA to set TDMLs

• Role of Citizen Suits & NGOs

NPDES Proposed Rule’s Preamble - 1978

Final Rule – NPDES Preamble

Executive Orders in the Code of Federal Regulations

• Published for current year ONLY• Title 3 of CFR• Historically in Federal Register• Collections of Presidential Papers• My favorite site for Executive Orders: http://www.archives.gov/federal-

register/executive-orders/

or http://bit.ly/1BsbGa

Browse and Update!

Currency

Federal Register

Updating of Executive Orders at NARA

Questions or Comments

Neal.Axton at the domain wmitchell.edu

Reference at the domain wmitchell.edu