Government

In Spectacular Move, Federal Agency Manages To Be Both 'Arbitrary' AND 'Capricious'

It's so easy to comply with the APA, how are they so bad at it?

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Administrative Law nerds can rejoice as the mainstream media is abuzz with those two magical words that litter your semester-ending exams. Interior Secretary Ryan Zinke, the Trump administration’s sportsman-in-chief who can’t even figure out how to rig his reel for a magazine profile, has diligently rolled back environmental protections to ensure we’ll be drilling for oil in Teddy Roosevelt’s head by 2019, but may have hit a snag with his latest stunt.

Zinke recently announced that most of the coastal lands in the country are now open for offshore drilling operations because there’s no reason Texas and Louisiana should have all the fun when an oil rig blows up and adds a nice, oily sheen to their local seafood, but made an exception — an exception that was never even formally requested — for the state of Florida. I’m sure Florida’s standing as a critical swing state has nothing to do with the decision to relieve Florida — again, unsolicited — from this regulatory rollback while ignoring multiple “Blue” states that formally requested an exemption.

Unfortunately for Zinke, his grasp of the Administrative Procedure Act may be no better than his grasp of fly fishing. Sen. Maria Cantwell of Washington has lodged a complaint, blasting the administration for violating federal law and legal experts are lining up to point out that she’s probably right:

Carl Tobias, a law professor at the University of Richmond, called Zinke’s action troubling. Singling out one state for exemption “may well violate federal law” that requires formal notice and comment period before taking regulatory action, he said.

From The Hill:

“That’s exactly the kind of thing that can get a program struck down, is a bunch of arbitrary decisions like this,” [UVA Law Professor Michael] Livermore said.

Drilling plans, like other major policy decisions by agencies, can be challenged in court once they’re made final. The department’s moves would be judged by their adherence to the Administrative Procedure Act, including a standard that government actions cannot be “arbitrary and capricious.”

“There’s a whole statute that explains how you’re supposed to make these decisions, and because you feel like it, or you like the governor, is not one of the reasons,” Livermore said.

From ThinkProgress:

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“The decision is apparently being made two days into a comment period for the state of Florida, but not for the numerous other states that requested the same exclusion based on the same reasoning,” Sierra Weaver, senior attorney with the Southern Environmental Law Center, told ThinkProgress. “Under the Administrative Procedures Act, you would say this is arbitrary and capricious. It is also clearly in violation of federal law, which requires this very specific process.”

****

“It’s the lack of the formal process,” Weaver said. “No one has ever seen anything like this. I don’t think anyone has imagined anything like this.”

To borrow from Han Solo, “I don’t know, I can imagine quite a bit.”

Trump administration may have violated federal law by exempting Florida from offshore drilling plan [CBS News]
Florida decision puts Trump drilling plan on shaky ground [The Hill]
Trump administration delivers favor to Florida GOP by removing state from offshore drilling plan [ThinkProgress]
Ryan Zinke Is Trump’s Attack Dog on the Environment [Outside]

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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