Administrative Actions

 

What it is:  An action challenging a decision of the agency, within its discretion.  Generally orders of the agency and permits must be challenged this way, to the fullest extent, before any other legal action can take place.  The easiest way to participate in the process is by submitting comments during the comments period.  Any issuance of a permit, major order, or major modification of a permit is going to have notice requirements and allow for a response by anyone interested.  Appeals of orders, major modifications, or permits in front of the Environmental Quality Board, Surface Mine Board, or Air Quality Board can be brought by anyone “adversely affected” by a permit.   The appeal is like a lawsuit but before an administrative board rather than a judge.  
 
Advantages:  This is really the only way to challenge a decision committed to the agency discretion.  Commenting on an action really gives you free reign to point out deficiencies and the agency is legally required to take these into account before issuing its final decision.  An appeal of the permit allows the opportunity to present a case before a neutral arbitrator, who is independent of the agency.  The members of the various boards have a fair amount of experience with the issues and laws they are dealing with.  Despite the fact that this is a formal hearing the rules tend to be a bit more relaxed than in either state or federal court.
 
Disadvantages:  While the agency is required to “consider” your comments they are free to consider and then dismiss them and do what they planned to do anyway.  To comment effectively you need to be pretty well versed with the decision itself as well as with the laws and regulations the decision is based upon.  An appeal can be intimidating as it does require a hearing.  To be successful at the hearing it is essential that you be very well versed in the facts and laws of the case.  Although the rules are more lax than in court, you will still be required to follow some standards of procedure and evidence.   The defense will almost certainly have professional legal staff.
 
Recommendations:   Realize that to be effective, this type of action will take a lot of time.   The better you know your subject the more likely it is you will be able to make a difference.  If you come across as someone who is not familiar with the governing laws and regulations it will be easier for the agency to dismiss your input.  It would be useful to talk with someone who has submitted comments or participated in an appeal before.  You do not have to comment to pursue an appeal, but if you are going to participate in one on your own the comments are probably a good exercise to familiarize yourself with the issues.  If you go in front of a board do not be afraid to ask the board’s clerk or the board’s lawyer for help keeping up with deadlines and making sure that you are on board with the applicable rules.  Do remember that this stuff is not rocket science, the biggest advantage a lawyer will have over you is their knowledge of the rules and procedures.  The board will probably cut you some slack in this area, and if you’ve put in the time you’re likely to know way more about the facts of the situation than opposing counsel.