The Hill: EPA appeals board is unconstitutional without reform

January 13, 2020 | By MICHAEL POON

The idea that high government officials must be accountable to the people should be uncontroversial. Democratic accountability is a cardinal principle in a constitutional republic. Requiring government actors to be answerable to the people protects the public from arbitrary and tyrannical governance. In practice, this means significant government decisions, especially those that regulate private conduct, must be made only by elected officials or those who are accountable to the people in other clear and direct ways. Such accountability is an essential means by which the government retains the consent of the governed.

The Framers codified these principles throughout the Constitution, including in a pivotal provision called the Appointments Clause. The clause requires unelected federal officials who exercise significant government power to be appointed with particular democratic controls. Usually, that means these officials, called “Officers of the United States,” must be nominated by the president and confirmed by the Senate, though Congress may through statute permit less powerful, “inferior” officers to be appointed by the president, a court, or a head of a department. This system varies the degree of accountability with an officer’s power, but it always ensures that it is an officer, not just any government employee, who makes the final decisions that affect the public.

Unfortunately, these safeguards have been ignored in recent decades, enabling a growing regulatory state to bestow significant authority upon myriad unaccountable bureaucrats. This not only results in a less responsive government, but it also threatens to render unconstitutional many past government actions.

The Environmental Protection Agency (EPA) is a prime example. The agency’s exercise of discretion under various environmental statutes has weighty consequences, ranging from halting a development project to fining individuals as much as $75,000 per day for an alleged regulatory violation. Consistent with the Appointments Clause, Congress vested these responsibilities in the EPA administrator, who is nominated by the president and confirmed by the Senate. Voters could, in turn, hold the president and senators responsible for their choices.

Notwithstanding these constitutional and practical principles, Administrator William Reilly in 1992 abandoned a large portion of his statutory responsibilities. He unilaterally created an office within EPA called the Environmental Appeals Board (EAB), and charged it with deciding on his behalf all administrative appeals of permitting decisions and civil enforcement actions. Moreover, he made EAB decisions final in the vast majority of cases so that they cannot be appealed even to himself or future EPA administrators. This structure endures to this day.

EAB’s authority is so broad that it can be exercised only by officers appointed pursuant to the Appointments Clause. The Supreme Court recognized as much in Lucia v. SEC, when it ruled that the Securities and Exchange Commission’s administrative adjudicators must be properly appointed as officers, because they hold permanent positions and exercise significant discretion in issuing decisions on behalf of SEC.

Yet EAB members are not nominated by the president and confirmed by the Senate, nor are they appointed as inferior officers pursuant to any congressional authorization, even assuming inferior officers can exercise EAB’s powers. Rather, they are simply hired like any other employee: unilaterally, with little vetting, and with no congressional input.

The consequences are twofold. Politically, the arrangement evades elected officials’ — and thus voters’ — most direct tool for holding EPA officials accountable for the exercise of permitting and enforcement powers. While there are other tools, they are too indirect or attenuated to realistically hold a non-officer in the civil service accountable. Legally, EAB’s deficient appointments structure means EAB members violate the Constitution every time they issue a decision. And it means every EAB decision for the past 28 years is void.

Fortunately for the EPA, the problem isn’t insurmountable. Optimally, Administrator Andrew Wheeler would return EAB’s authority to himself, as contemplated by statute. Alternatively, Congress can craft proper appointment procedures for EAB members. Either would fix the Appointments Clause problem. But even if Congress doesn’t act, Wheeler can retain the EAB structure simply by making its actions advisory and requiring a presidentially-nominated, Senate-confirmed officer to make the final decisions. Potential candidates are the EPA general counsel or the assistant administrator for administration and resources management, who oversees EAB. Either way, EAB members may play no more than an advisory role until Congress corrects their appointment procedures.

The agency recently proposed changing its regulations to permit the administrator to decide cases pending before EAB. Though this would ameliorate the Appointments Clause problem, it would only do so to the extent the Administrator actually intervenes in EAB cases. EAB decisions in other cases still would be invalid.

To fully comply with the Appointments Clause, EPA must reform the EAB structure to restrict decision-making to duly appointed officers. The principles of democratic accountability demand it.

Michael Poon, who recently submitted related comments in the referenced EPA rule-making record, is an attorney with Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.

This op-ed was originally published by The Hill on January 13, 2020.