Is the Environmental Appeals Board Unconstitutional or Unlawful?

Document Type

Article

Publication Title

Environmental Law

Version

This is a pre-publication version of an article that appeared on pages 737-750 in Environmental Law, Vol. 49, Issue 3 in Summer 2019.

Journal Abbreviation

Env’t L.

Abstract

The Administrator of the EPA created the Environmental Appeals Board (EAB) in 1992 and appointed three members (now four) to execute the Administrator’s function as the final decisional authority of EPA in its agency adjudications. Given this function, the members of the EAB must be inferior officers of the United States. However, the Appointments Clause of the Constitution requires that all officers be appointed by the President with the advice and consent of the Senate, except that Congress may vest the appointment of inferior officers in the President alone, the heads of departments, or the courts of law. Unfortunately, no statute authorizes the Administrator to appoint the EAB members, and no statute authorizes the Administrator to delegate his functions to the EAB members.

This article addresses these failings and assesses possible ways in which the EAB might be constitutional and lawful. It concludes that it takes a significant stretching of the law and statutory interpretation to save the EAB, and it suggests that Congress solve this problem by clearly authorizing the appointment of and delegation to the members of the EAB of the final decisional authority of the agency.

First Page

1

Last Page

13

Publication Date

2019

Comments

Page numbering in the linked pre-publication article differs from the final published version.

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