Law Commons^™

Underground Environmental Regulations: Regulations Imposed As Mitigation Measures Under Ceqa Violate The California Administrative Procedure Act, Jonathan Wood

Jonathan Wood

What happens when an agency adopts a regulation under the California Environmental Quality Act as mitigation for a program’s environmental impact, without complying with the procedural requirements of the California Administrative Procedure Act? According to a recent California Court of Appeal decision – Center for Biological Diversity v. Department of Fish and Wildlife – these mitigation measures, which this article refers to as underground environmental regulations, are invalid. This article defends that interpretation and addresses its consequences for agencies and the regulated public. Although these additional procedural protections benefit regulated parties in a variety of ways, they can also burden …

The Death Of Tax Court Exceptionalism, Stephanie Hoffer, Christopher J. Walker

Christopher J. Walker

Tax exceptionalism—the view that tax law does not have to play by the administrative law rules that govern the rest of the regulatory state—has come under attack in recent years. In 2011, the Supreme Court rejected such exceptionalism by holding that judicial review of the Treasury Department’s interpretations of the tax code is subject to the same Chevron deference regime that applies throughout the administrative state. The D.C. Circuit followed suit by rejecting the IRS’s position that its notices are not subject to judicial review under the Administrative Procedure Act (APA). This Article calls for the demise of another instance …

Student And Professorial Causes Of Action Against Non-University Actors, Andrew Kloster

Andrew Kloster

While courts have increasingly looked to contract law to vindicate the rights of students against universities and colleges, traditional contract law sometimes provides inadequate protections in situations where rights are adversely affected by third-party action.

The rise of administrative oversight by the Department of Education and by other third-party governmental actors limits the universe of contracts that can be formed and is constantly changing the student-university relationship. This oversight is so pervasive that adverse administrative decisions of even private universities could possibly be characterized as state action or agency action for the purposes of a direct constitutional lawsuit or suit …

Toward Adequacy: Sense And Statutory Construction In The Judicial Review Provisions Of The Apa, Sarah L. Olson

Sarah L Olson

Each year, hundreds of people, companies, organizations, and associations sue the federal government for injuries they have suffered at the hands of federal agencies. Such suits are often brought under the judicial review provisions of the Administrative Procedure Act (“APA”), which Congress enacted expressly to allow broad access to courts in an age of increasing administrative agency action. By the terms of the APA itself, all final agency action for which there is no other adequate remedy in a court is reviewable under the APA.

But the very language meant to welcome such suits into court also acts as a …