Constitutional Guarantees and Administrative Agency Law in the United States

Constitutional Guarantees and Administrative Agency Law in Environmental Law

Common law rights that existed before the Constitution was ratified were incorporated into it. Since administrative agencies were not a part of the legal system at that time, no common law principles concerning them were developed. For that reason, the applicability of some constitutional rights to administrative agency action is murky

If agencies are not mentioned but are entitled to bring lawsuits or even determine the rights of the parties, how does the right to a trial by jury apply? If a hearing is held instead of a trial, is the due process guaranteed by the Constitution being ignored? Can an agency deprive citizens of the use of their own property without compensation? Can an agency deny to one citizen a right that it grants to another without giving the citizen a chance to speak? Is it constitutional for an agency to require that evidence be submitted without a subpoena? What if the evidence is incriminating?

Some of these questions have been answered by the courts, and some have been resolved through statutes. Both the legislature and judiciary, conscious of the sensitivities of Americans, have shaped administrative law so that rights are not taken away by the whim of an agency.

Due Process

Due process is a complicated legal idea, but the Bill of Rights, in the Fifth Amendment, prohibits taking life, liberty, or property without “due process of law.” How it applies to agency actions has presented some particularly interesting questions for the Environmental Protection Agency.

In the executive mode, the EPA may deny a permit, either shutting down a business or mandating control measures for the activity In its judicial role, the EPA may order the payment of a penalty, cleanup of contaminated property, or upgrades to equipment. Acting as a legislator, the EPA can change the rules or add new rules that will require new equipment, processes, or perhaps prohibit a business from operating as it has in the past. In all of these cases, the expectation of due process seems clear. To act constitutionally, the agency must allow the regulated party the opportunity to be heard.

Even though U.S. citizens, familiar with the concepts of lawsuits and public meetings, may expect the Fifth Amendment to protect their rights to a public hearing when an agency acts, courts have disagreed, even when a property right is at issue. The question, then, is what type of process is necessary before the agency action can go forward constitutionally?

Courts have allowed administrative agencies to fashion their own procedures for balancing the citizen’s rights with the agency’s need to fulfill its function. Often, that means dealing with a large number of regulated persons and handling most of the regulatory functions with limited resources. The legislature may define in the statutes the hearing process the agencies are charged to implement. This is often the case in environmental law. But to get a hearing, one must usually request it; and the hearing may be extremely informal, such as the submission of information or a casual meeting with a few representatives of the agency. If the enabling law does not specify the type of hearing to be held, the Administrative Procedure Act (APA) applies, and the agency must follow APA rules. Also, if the EPA has reached a decision impacting the rights of a citizen and that person has exhausted all the means of dealing with the complaint within the agency, courts usually have jurisdiction to hear appeals.

When an agency acts in a legislative capacity, the protection of due process is different. Again, the APA fills the void with its specifications for rulemaking procedures, notification requirements, and time limits for proper publication. However, it is important to note that the APA is a default system, providing guidelines when the enabling law does not. On the other hand, a specific statute can require a hearing or notice even if the APA would not. In most cases, regulated or interested parties may submit comments to the agency, and the agency must consider them.

Compensation for Private Property

The Bill of Rights, again in the Fifth Amendment, guarantees compensation when the government takes private property in the interest of the public or for its own use. In the environmental arena, this right has been construed in different ways, but a pattern seems to be emerging.

Regulators have traditionally restricted uses of property, usually through zoning and permitting. Zoning allows particular uses of real estate within a given area; permitting allows the permit holder to engage in a certain activity. Sometimes zoning takes away a beneficial use of the property, particularly when its current use is prohibited in rezoning. Similarly, if a person obtains property to put it to a certain use and cannot get a permit to do it, the property’s value to that owner has decreased.

The government has the right of eminent domain the right to take private property for the good of the government, but it does not have the right to take property without just compensation. Yet early cases involving environmental restrictions did not usually find that a taking of the property had occurred. The right of the government was upheld simply because the regulation was in the interest of the public, and the property owner did not get compensated for his or her loss.

Wetlands cases have been turning this practice around. To fill a wetlands, a person needs a permit. If the use envisioned by the owner requires conversion of the land to dry land and the permit is not granted, alternatives to development may not exist, and the owner’s property value might decline significantly. In a recent case, a circuit court decided that the property had been taken from the owner and compensation had to be made. This case is not the only one with such a holding. When Ronald Reagan was president, he issued an executive order requiring agencies to calculate the amount that might be owed to a property owner because of the government’s action. However, calculating the current value of property is a difficult issue that may have to be resolved by the courts.

Self-incrimination

Self-incrimination

The Bill of Rights grants a person the right not to incriminate himself or herself. Unfortunately, a regulated person subject to an administrative agency may not be able to rely on this Fifth Amendment right.

The term regulated person includes businesses. However, the right to refuse to incriminate oneself does not apply to businesses, because they are not natural persons. The right against self-incrimination has been interpreted to mean that a person cannot be compelled to testify. However, it does not cover the common situation where a business or other person created documents and submitted them to an agency, since the evidence was not compelled at the time it was created. Another restriction on the right is the context. If a criminal proceeding is not anticipated when the information is requested, the right does not apply. Or if the person is not actually in custody or under order of the court to speak, the privilege is not available.

Since agencies exist to provide expertise in specialized areas of regulation, requirements for recordkeeping and report submission are common in administrative law. They have been viewed by courts as necessary oversight of the regulated community. Engaging in a particular business, such as selling firearms or liquor, or manufacturing something that creates polluted water or air, is not considered an unlimited right. If the government regulates the activity, the government will establish the conditions under which the business can operate.

The EPA issues permits, and the permit conditions include submission of reports, notification of upset conditions, and periodic testing. Environmental laws ma
ndate registration of certain types of equipment as well as monitoring and reporting of releases of contaminants to the environment. Also, upon the request of the EPA, the regulated person must furnish information about processes, events, and other issues so the administrator can determine if a violation of a law occurred. Though this sort of required recordkeeping sounds like forced self-incrimination, it has not been declared unconstitutional for the reasons cited above. Not only must the records be kept and submitted, but it is a crime to falsify information.

Searches and Seizures

The Fourth Amendment right against unreasonable searches and seizures (and the provision requiring a warrant in most cases) does apply to administrative agencies. However, administrative searches are usually treated differently under the law than a search for evidence of a crime.

Along with their broad powers in asking for information, agencies are often given statutory authority to inspect regulated businesses. The EPA has this type of power under the major environmental laws. Regulated businesses are expected to cooperate with the government; the refusal to allow an inspection is a separate violation. However, a business has a right to refuse entry to an inspector without a search warrant. Refusing entry may not be prudent, though, for the inspector will most likely obtain a warrant with ease and be upset for the inconvenience.

Administrative search cases have established two different standards. The first is the traditional one: the Fourth Amendment says “no warrant shall issue without probable cause.” This guarantee is used in connection with criminal investigations. Probable cause is a legal standard under which the person requesting the warrant demonstrates that a crime has most likely been or is about to be committed, and the person who is the subject of the investigation more likely than not is involved, and the place to be searched is likely to contain evidence concerning the crime. The seeker of the warrant must go to a judge to get the warrant.

The second type of administrative search warrant is much different than the first. Although the investigator must still go to a court for the warrant, the rules are relaxed. The investigator must simply show that the target of the investigation is a regulated party and that the search is part of routine neutral or random inspection of the regulated parties. Most administrative searches are this type. Although the EPA does have criminal cases to investigate, its primary goal in inspections is to keep a visible presence in the regulated community to emphasize compliance.

The Toxic Substances Control Act (TSCA) grants a sweeping power to the EPA to issue administrative subpoenas. Those documents can require appearance and testimony, and like other subpoenas, order the person to bring records to the hearings. If the subpoena is not obeyed, the EPA can ask the district court to enforce it. Since TSCA covers numerous chemicals and mixtures of chemicals, the EPA does not simply use the subpoena power when gathering information about potential TSCA violations; it uses the tool whenever it deems it appropriate, regardless of the statute it is enforcing, as long as a chemical is involved.

Jury Trial Rights

When an environmental case becomes a criminal one, the defendant is entitled to a jury trial; the Sixth Amendment to the Constitution guarantees it. Whenever a person is charged with a crime, the personal impact of the allegation is assumed to be greater than when a civil lawsuit is brought. Freedom is perhaps the most prized of our rights, and conviction could result in losing some or all of it.

Jury trials may also be important in civil cases, however. The person seeking a jury trial may be either the plaintiff or the defendant either of the parties may think a jury would be more favorable to his or her point of view. The Seventh Amendment of the Constitution assures parties to a civil case of the right to a jury in certain situations. But for a while, the right to a jury in civil cases involving environmental statutes was in doubt.

The Seventh Amendment specifies when a jury trial may be demanded for a civil case: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” But environmental lawsuits were not part of the common law when the Constitution came into being, and lawyers argued about what type of common law case the environmental enforcement most resembled. The controversy centered around two discrete categories of lawsuits, equity cases and legal cases. In English jurisprudence, the cases were taken to separate courts.

Equity cases were brought when money damages alone could not address the wrong the defendant committed. An example would be an action to force a seller of real estate to perform a contract if the seller changed his or her mind and didn’t want to sell. Real estate has traditionally been treated differently than other goods because each property is unique. Legal cases, on the other hand, asked for a remedy involving money damages. They often went beyond simply making the plaintiff whole; they punished the wrongdoer.

Public nuisance cases belonged in the equity court. In these cases, the government would be asking the court to order the defendant to stop doing whatever was creating the nuisance. Also, if restitution was desired instead of punishment, the plaintiff would file the case in a court of equity. But if the government had a right to sue someone for civil penalties, the penalty was considered a legal issue, and that case would be subject to the court of law. One of the primary distinctions between the courts was the right to a jury trial. Either party to a legal suit could demand a jury. Equity cases were tried only before a judge.

When the American legal system was born, the two types of courts merged into a single court that could hear both equity and legal cases. But juries can still decide only cases brought in law, not in equity.

In the early days of environmental enforcement, the government often successfully argued that the defendants in environmental lawsuits were not entitled to a jury. The Supreme Court finally ruled on the issue in 1987 in a case involving the Clean Water Act. In cases involving penalties over the $25 limit, the parties have a right to a jury trial, but juries can only decide whether the defendant is liable. Unless the statutes change, the judge is the only person who can determine the amount of the penalty. The Supreme Court did not have constitutional objections to denying the defendant a jury on the penalty determination.
Based on “Environment and the Law. A Dictionary”.