ENVIRONMENTAL DECISION-MAKING THROUGH ADJUDICATORY APPEALS IN THE UNITED STATES

Authors

  • Kelly Tzoumis Department of Public Policy, DePaul University, Chicago, United States of America
  • Emma Shibilski Department of Public Policy, DePaul University, Chicago, United States of America

DOI:

https://doi.org/10.20319/pijss.2019.51.846865

Keywords:

Environmental Appeals Board, Environmental Adjudication, U.S. Environmental Protection Agency

Abstract

This research examines the appeals process of decisions made by the United States Environmental Protection Agency (EPA). As part of an adjudicatory appeals process, the Environmental Appeals Board (EAB) was established in 1992 internal to the EPA to review the decisions of the agency in specific areas. The purpose of the EAB was to serve as a neutral arbitrator that assists in the expeditious corrections of error which includes providing for consistency of policymaking and alleviation of cases proceeding to the federal court system. This research explores if the EAB has lived up to its charter. Research questions include what are the outcomes of these EAB adjudicatory appeal hearings? Are some environmental laws challenged more than others? More importantly, what is the impact of the federal courts on this EAB adjudicatory appeal process? For instance, are the courts in disagreement or generally affirm EAB decisions?  And, overall, how long does this process take for a petitioner who files an EAB appeal and then moves the case into the federal courts for a remedy? Using publicly available data, decisions are analyzed from 1992-2018 (n=1014) by the EAB in regard to the type of appeal, the environmental legislation and programs involved as well as the duration of time for EAB decision-making over time. In addition, the outcome of the appeals to the federal courts (n=83) during this same time period are investigated to determine the efficaciousness of this process for an appellant. Results show that permits are 1.5 times more likely to be appealed versus other actions like penalties or consent orders before the EAB. Water issues (30.5%) are more likely to be appealed to the EAB than air (24.9%) or other cases. Based on data from January 2006 to January 2019 (n=552), the EAB has improved its processing time to provide decisions from approximately 7 months to 3 months. Only 8% of the EAB cases advance to the federal court system. However, the results indicate that appellants are not likely to have their case reversed by the federal court system. Only 13% of the EAB cases at the federal courts are reversed, and 9.6% are remanded back to the EAB, and 20.5% are affirmed. The majority of cases are either dismissed or denied (56.6%). This means that the original decision of the EAB remains intact for 77% of the cases heard at the federal courts. These results suggest some guidance to polluters early in the permitting process, particularly in water and air, could improve EPA decision-making preventing the need for cases coming before the EAB. The results indicate more guidance or clearer standards for implementation of permits is required by the EPA to polluters. In addition, the EAB appears to not be a major adjudicatory appeals venue for appellants, although the federal courts appear to be even less so which could mean the role of neutral arbitrator has not been achieved.

References

Barnett, K. (2016). Why bias challenges to administrative adjudication should succeed. Missouri Law Review. 81, 1024-1044.

Funk, W. (2017). Slip slidin’ away: The erosion of APA adjudication. Penn State Law Review. 122 (1), 144-169.

Humphries, M. A., & Songer, D. R. (1999). Law and politics in judicial oversight of federal adjudication. Journal of Politics. 61 (1), 207-220. https://doi.org/10.2307/2647783

Hodas, D. (2018). US climate change adjudication: The epic journey from a petition for rulemaking to national greenhouse gas regulation. C. Voight * Z. Makuch (Eds.), Courts and the Environment (pp. 345-368). Cheltenham, Glos: Edward Elgar Publishing Ltd. https://doi.org/10.4337/9781788114677.00025

Kaplow, L. (2017). Optimal multistage adjudication. Journal of Law, Economics, & Organization. 33, 613-652. https://doi.org/10.1093/jleo/ewx007

Lazo, K. C. (2018). Practice to policy: Assessing evidence-based decision-making in health policy in great Manchester. PEOPLE: International Journal of Social Sciences. 4 (2), 1051-1070. https://doi.org/10.20319/pijss.2018.42.10511070

Rachlinski, J. J. (2005). Rulemaking versus adjudication: A psychological perspective. Florida State University Law Review. 32 (2), 529-554.

Reich, E. E. (1994). EPA’s new environmental appeals board. Natural Resources & Environment. 8 (4), 39-41, 65-67.

Ringquist, E. J., & Emmert, C. E. (1999). Judicial policymaking in published and unpublished decisions: The case of environmental civil litigation. Political Research Quarterly. 52 (1), 7-37. https://doi.org/10.2307/449170 https://doi.org/10.1177/106591299905200101

Shavell, S. (1995). The appeals process as a means of error correction. Journal of Legal Studies. 24, 379-426. https://doi.org/10.1086/467963

Shavell, S. (2018). The rationale for motions in the designs of adjudication. American Law and Economics Review. 1-48. doi: 10.3386/w24703 https://doi.org/10.1093/aler/ahy004

Songer, D. R., & Sheehan, R. S. (1992). Who wins an appeal? Upperdogs and underdogs in the United States Court of Appeals. American Journal of Political Science. 36 (1). 235-58. https://doi.org/10.2307/2111431

Songer, D. R., Sheehan, R. S., & Haire, S. B. (1999). Do the “haves” comes out ahead over time? Applying Galanter’s framework to decisions of the U.S. Court of Appeals, 1925-1988. Law & Society Review. 33 (4), 811-832. https://doi.org/10.2307/3115151

Tan, P. V. (2018). New challenges for marine environmental protection laws of Vietnam: Approve full marpol convention 73/78. PEOPLE: International Journal of Social Sciences. 1 (1), 282-291. https://doi.org/10.20319/pijss.2015.s11.282291

Taratoot, C. D. (2014). The politics of administrative law judge decision making at the Environmental Protection Agency in civil penalty cases. American Politics Research. 42, 114-140. https://doi.org/10.1177/1532673X13490196

Trijono, R. (2018). Is the Republic of Indonesia as a democratic state? (Case study the Republic of Indonesia representative democracy model in perspective of law making. PEOPLE: International Journal of Social Sciences. 4 (3), 44-56. https://doi.org/10.20319/pijss.2018.43.4456

United States Environmental Protection Agency. (2013). Environmental Appeals Board practice manual. Author. Retrieved from United States Environmental Protection Agency Environmental Appeals Board website: https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/8f612ee7fc725edd852570760071cb8e/889f7aab01cf481c85257afd0054d515/$FILE/Practice%20Manual%20August%202013.pdf

United States Environmental Protection Agency. (2017). The EPA’s Environmental Appeals Board at twenty-five: An overview of the Board’s procedures, guiding principles, and record of adjudicating cases. Retrieved from United States Environmental Protection Agency website: https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/8f612ee7fc725edd852570760071cb8e/381acd4d3ab4ca358525803c00499ab0/$FILE/The%20EAB%20at%20Twenty-Five.pdf

United States Environmental Protection Agency. (2018). Environmental Appeals Board consent agreement and final order procedures. Author. Retrieved from: https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/8f612ee7fc725edd852570760071cb8e/381acd4d3ab4ca358525803c00499ab0/$FILE/CAFO%20Guidance%20Revised%20July%202018.pdf

United States Environmental Protection Agency. (2019). EAB dockets. Retrieved from https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/EAB+Dockets?OpenPage

Wolgast, A. L., Stein, K. A., & Epp, T. R. (2010). The United States environmental adjudication tribunal. Journal of Court Innovation. 3 (1), 185-199).

Downloads

Published

2019-05-30

How to Cite

Tzoumis, K., & Shibilski, E. (2019). ENVIRONMENTAL DECISION-MAKING THROUGH ADJUDICATORY APPEALS IN THE UNITED STATES. PEOPLE: International Journal of Social Sciences, 5(1), 846–865. https://doi.org/10.20319/pijss.2019.51.846865