Hamstringing State Agency Authority to Promulgate Rules: A Questionable Way to Improve Environmental Regulation

Jim Rossi

Editors' Summary: Florida's APA was significantly revised in 1996 and 1999 to impose stringent qualifications on agency authority to promulgate regulations. Many of the amendments echo proposed reforms to the federal APA and the Florida "model" has also been said to be a useful precedent for "reform" of other states' APAs. In this Article, Prof. Jim Rossi analyzes the amendments and describes their ramifications as far-reaching and adverse. He asserts that they will, in addition to hindering the ability of regulatory agencies to promulgate regulations, make environmental regulation less flexible and produce other results likely never desired by proponents of the revisions. In addition, Professor Rossi contends that the amendments risk damaging the already fragile relationship between EPA and state administrative agencies. The Article concludes that the Florida revisions will not satisfy the legislative goal of improving the extent to which agencies are accountable for their environmental standards, and should not serve as a model for other jurisdictions.

Jim Rossi is the Patricia A. Dore Associate Professor of State Administrative Procedure, Florida State University College of Law. He thanks J.B. Ruhl and Ansley Samson for their comments on a draft of this Article. An expanded version of this Article appears in a forthcoming symposium on state administrative procedure. See Jim Rossi. "Statutory Nondelegation": Learning From Florida's Recent Experience in Administrative Procedure Reform, 8 WIDENER J. PUB. L. (forthcoming 1999).

[29 ELR 10735]

Agency implementation of environmental statutes depends on broad agency authority to promulgate rules. While many federal environmental statutes, such as the Clean Air Act (CAA),¹ contain high levels of detail and precision the U.S. Environmental Protection Agency (EPA) regulates several areas of concern under broad statutory mandates. Many of the EPA's regulations fill in the details of general statutory language that Congress either could not or would not define. Congress, of course, is often unable to reach consensus on detailed regulatory matters and does not have the same degree of expertise as regulatory agencies such as EPA. Even where it does provide some detail, it is often unable to define terms such as "quality," "feasible," "reasonable," "cost," and "benefit." As matters of both constitutional doctrine and administrative procedure, federal courts routinely allow broadly defined rulemaking authority for EPA and other agencies.

While most states follow this approach, allowing agencies to promulgate rules pursuant to broadly defined statutory authority, some impose restrictions on agency authority to regulate absent very precise statutory language. This Article discusses a 1996 revision to Florida's Administrative Procedure Act (Florida APA or APA),² which adopts an extreme restriction on agency authority to promulgate rules in environmental and other regulatory contexts. Not surprisingly, Florida's 1996 APA Amendments, along with their modification in 1999—the first administrative procedure amendment signed into law by Gov. Jeb Bush (R-Fla.)—were opposed by many environmental groups who viewed the amendments as pro-business, favoring development over environmental protection goals. Prior to Governor Bush's approval of the 1999 Amendments, the proposed changes were also criticized by Florida's Secretary of Department of Environmental Protection (DEP).

This Article begins with a discussion of the approach of federal courts toward evaluating agency authority to promulgate rules. Next, it describes the 1996 and 1999 Florida APA Amendments, which severely restrict agency authority to promulgate rules, and contrasts Florida's approach with the federal APA. The Article then explores some of the implications of the 1999 Florida APA Amendments for state environmental regulation, suggesting that the amendments will make environmental regulation less flexible and threaten the cooperative federalism that has developed between EPA and state regulators. Finally, the Article addresses several general problems with generic efforts to restrict agency rulemaking authority. The Article concludes that restrictions on agency rulemaking authority may, in the short term, increase uncertainty regarding the interpretation of environmental statutes and regulations and, in the long [29 ELR 10736] term, reduce the accountability of regulators' decisions about matters of environmental policy, without necessarily improving the quality of state environmental regulation.

Rulemaking Authority Under the Federal APA

"No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; whenever a general power to do a thing is given, every particular power necessary for doing it is included."³ Madison's axiom—that the general includes the particular—is a fundamental precept of federal administrative procedure. Although a federal administrative agency is required to state the source of its rulemaking authority when it provides notice of proposed rules, it operates under the assumption that general legislative grants of power include the particular. Consistent with Madison's well-accepted precept, the federal APA⁴ does not require an agency to have specific statutory authority prior to promulgating a rule. Section 553 of the federal APA requires an agency's notice of proposed rulemaking (NOPR) to contain a "reference to the legal authority under which the rule is proposed."⁵ Occasionally, federal courts invalidate agency rules for failure to comply with this notice requirement. For example, the U.S. Court of Appeals for the D.C. Circuit concluded that the Interstate Commerce Commission's (ICC's) failure to cite the specific statutory authorization for its rulemaking authority in its original notice of rules regarding the licensing of tour brokers was reversible error.⁶

Despite this notice requirement, the federal case law overwhelmingly suggests that a general grant of rulemaking authority in a statute suffices to establish agency authority to promulgate rules. The U.S. Supreme Court endorsed this principle in Mourning v. Family Publications Service, Inc.,⁷ where it addressed the Federal Reserve Board's "four installment" rule—a regulation that requires sellers to comply with the disclosure requirements of the Truth in Lending Act to those to whom they extend consumer credit without finance charges if the sum owed is payable in more than four installments. In reasoning that the Board's rule did not exceed its statutory authority, the Court stated:

The standard to be applied in determining whether the Board exceeded the authority delegated to it under the Truth in Lending Act is well established under our prior cases. Where the empowering provision of a statute states simply that the agency may "make … such rules and regulations as may be necessary to carry out the provisions of this Act," we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is "reasonably related to the purposes of the enabling legislation."⁸

Noting ambiguity in the statutory language, the court observed "where reasonable minds may differ as to which of several remedial measure should be chosen, courts should defer to the informed experience and judgment of the agency to whom Congress delegated appropriate authority."⁹ To hold the rule outside the scope of the agency's authority, the Court reasoned, "would undermine the flexibility sought in vesting broad rulemaking authority in an administrative agency."¹⁰

Federal circuit courts routinely follow this approach, occasionally departing from it based on a court's rejection of an agency statutory interpretation the court deems to conflict with clear statutory language. In a recent case involving the rulemaking powers of the successor to the ICC, the Surface Transportation Board (STB), the D.C. Circuit held that the agency acted within its authority when it modified criteria previously adopted for exempting purchasers of short line railroads from normal certification processes.¹¹ Challengers argued that the STB was authorized by statute to deregulate, not to adopt new regulations.¹² But the D.C. Circuit, applying Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.¹³ deference, upheld the agency's interpretation of its statutory powers to the extent the interpretation was reasonable.¹⁴ Thus, although on occasion federal courts have held that the clear meaning of an unambiguous statute can confine an agency's authority to promulgate rules, on either statutory¹⁵ or constitutional¹⁶ grounds, courts [29 ELR 10737] defer to reasonable agency interpretations regarding statutory authority for specific rules issued pursuant to general statutory grants of authority.¹⁷

The principle that agencies have sweeping authority to promulgate rules based on nothing more than general statutory language has on occasion been a target for federal reformers. In the late 1970s and early 1980s, Congress considered a proposal to significantly narrow agency rulemaking authority under the APA. This proposal, advanced by Sen. Dale Bumpers (D-Ark.), grew out of a dispute between the federal funding agency for education programs and a small school district in the senator's home state of Arkansas. The Bumpers proposal would have amended the judicial review sections of the APA,¹⁸ directing courts to "require that action by the agency is within the scope of the agency jurisdiction or authority on the basis of the language of the statute or, in the event of ambiguity, other evidence of ascertainable legislative intent."¹⁹ Although the Bumpers Amendment was not enacted into law, it did not die easily and was the subject of discussions before Congress for several years.

In 1994, more than a decade after the extreme Bumpers Amendment failed enactment, Sen. Robert Dole (R-Kan.) proposed as a part of a cost/benefit restriction bill a watered-down version of the Bumpers proposal intended to restrict agency authority to promulgate new regulations. Dole's proposal prohibited agencies from promulgating rules where it is not necessary to achieve a statutory objective. Dole's proposal stated: "any rule that expands Federal power or jurisdiction beyond the level of regulatory action needed to satisfy statutory requirements shall be prohibited."²⁰ Against the spirit of the federal case law, the Dole proposal would have left to courts the task of determining when rules are necessary for purposes of satisfying the minimum level of regulatory action required by statute. This amendment also failed to secure congressional adoption.

Florida's 1996 and 1999 APA Amendments

In 1996 Florida amended its APA, adopting some fairly radical administrative procedure reforms. Many of the 1996 Florida APA Amendments effectuate a counterrevolution against rulemaking by making agency adoption of regulations more difficult than was previously the case.²¹ Most notably, the 1996 Florida APA reforms included a provision that, like the failed Bumpers Amendment, sharply restricts agency authority to promulgate rules. Florida's 1999 APA Amendments, opposed by many environmental protection groups in the state, continue this approach, reaffirming that Florida's legislature intends to limit agency rulemaking to only those situations in which there is express statutory authorization.

Florida's 1996 APA Amendments

Some recent state APA reforms, perhaps inspired by the provision in the Dole reform bill, include provisions that sharply restrict agency authority to promulgate rules. In 1995, Washington added a section to its APA that states "an agency may not rely solely on the section of [the] law stating a statute's intent or purpose, or on the enabling provisions of the statute establishing the agency, or on any combination of such provisions, for its statutory authority to adopt the rule."²²

Florida's 1996 APA revisions went a step further, adding to its APA a remarkable section which states:

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute.²³

This 1996 Florida reform, which echoes aspects of the federal Bumpers Amendment, is perhaps the most restrictive of those in state APAs. The provision Florida added to its APA in 1996 modified preexisting case law that held, consistent with the Supreme Court's decision in Mourning, that a rule is valid if it is reasonably related to the enabling statute and not arbitrary and capricious.²⁴

[29 ELR 10738]

Florida's 1996 standard restricting rulemaking authority is also incorporated into the "invalid exercise of delegated legislative authority"²⁵ criterion in § 120.52(8) of Florida's APA. In Florida, rules can be challenged before an administrative law judge (ALJ) on several grounds, including failure to have sufficient statutory authority.²⁶ Proposed rules were immediately subject to the new standard.²⁷ For an interim period, existing rules were evaluated by agencies and the legislature to determine whether additional statutory authorization was necessary; following July 1, 1999, all existing rules were to be subject to legal challenge based on the new standard restricting rulemaking authority.²⁸

Florida's 1996 provision restricting agency rulemaking authority caught many agencies by surprise. Following Florida's adoption of its 1996 standard restricting rulemaking authority, over 5,000 agency rules—more than 20 percent of Florida's regulations—were determined to be out of compliance with the new standard.²⁹ This list of rules, compiled by Florida's Joint Administrative Procedures Committee with input from each agency's evaluation of its existing rules for compliance, was sent to the president of the Florida senate and its speaker of the house. The legislature then acted on this list, enacting over two dozen rules authorizing bills in 1998.³⁰ This may have served a useful housekeeping function, but the conventional understanding is that few, if any, of these statutes were the subject of intense legislative deliberation and debate regarding the scope of delegated power.

After each agency had given input to Florida's legislature regarding agency compliance with the new standard, in 1998 the Florida state courts interpreted the 1996 amendment's restrictions on agency rulemaking authority. The most notable decision is St. Johns River Water Management District v. Consolidated-Tomoka Land Co.,³¹ an opinion written by a panel of Florida's First District Court of Appeal, its main appellate court hearing administrative law cases. Despite the language added to Florida's APA in 1996, this case upheld an agency's authority to promulgate rules without detailed legislative authorization addressing each promulgated rule. In this sense, Consolidated-Tomoka might be interpreted as a judicial effort to temper the counter-revolution against rulemaking in Florida's 1996 APA Amendments.³²

At issue in Consolidated-Tomoka was a challenge to a water management district's statutory authorization for stormwater and floodplain protection rules. The rules established two new hydrologic basins in the district's region and established new standards pertaining to runoff, recharge, stormwater systems, and riparian wildlife.³³ In a rule challenge, an ALJ determined that the proposed rules were supported by competent substantial evidence and that they were not arbitrary or capricious. The ALJ, however, determined that the rules were invalid because they were not within the "'particular powers and duties'" granted by the enabling statutes, as required by new standard in Florida's APA.³⁴ Statutory language directed the agency to "'not [allow] harm[] to the water resources,'" to "'delineate areas within the district wherein permits may be required,'" and to "require such permits and impose such reasonable conditions" to comply with state law.³⁵ Despite this language, the ALJ determined that this statutory authorization was inadequate under the new standard restricting rulemaking authority.³⁶

The Consolidated-Tomoka panel unanimously reversed the ALJ's decision.³⁷ Based on the language of the APA and aided by dictionary meaning, the court observed that there were two possible interpretations of the word "particular" in Florida's APA.³⁸ According to the court, either the APA could mean that the powers and duties designated by the statute must be "particular" in the sense that they are limited to a specifically identified class, or it could mean that they were "particular" in the sense that they were described in detail.³⁹ The ALJ's decision, which required very detailed description of regulated powers, adopted the latter meaning.

The panel disagreed with the ALJ's interpretation that "particular powers and duties" required a minimum level of detail in the statute.⁴⁰ Instead, the court held that § 120.52(8) "restricts rulemaking authority to subjects that are directly within the class of powers and duties identified in the enabling statute."⁴¹ The court further elaborated that "the question is whether the rule falls within the range of powers the Legislature has granted to the agency for the purpose of enforcing or implementing the statutes within its jurisdiction."⁴² The new standard, the court observed, "is a functional test based on the nature of the power or duty at issue [29 ELR 10739] and not [in] the level of detail in the language of the applicable statute."⁴³

Two concerns with the ALJ's interpretation of the "particular powers and duties" standard animated the court's decision. First, the court reasoned, the ALJ's standard, which requires a statute describing in detail the subject matter of each rule proposed, "would be difficult to define and even more difficult to apply."⁴⁴ As the court wrote, "an argument could be made in nearly any case that the enabling statute is not specific enough to support the precise subject of a rule, no matter how detailed the Legislature tried to be in describing the power delegated to the agency."⁴⁵

Second, the court observed, the ALJ's interpretation, which is more restrictive of agency authority than the court's, would place agencies between two conflicting commands in Florida's APA.⁴⁶ In Florida, unlike the federal system, "rulemaking is not a matter of agency discretion"⁴⁷ and agencies are required to adopt rules to the extent it is "feasible and practicable."⁴⁸ But, "if the lack of detail in the enabling statute could be said to prohibit an agency from adopting rules … , the agency might not be able to carry out the very task the Legislature assigned to it."⁴⁹ By implication, the court reasoned that agencies must have the authority to adopt rules within the class of powers conferred by the applicable enabling statute, and must not be limited to adopting rules only where a statute describes "in detail the subject of each potential rule."⁵⁰

Florida's 1999 APA Amendments

Much like the 1996 amendment restricting rulemaking in Florida, the Consolidated-Tomoka case surprised many in Florida and has been a topic of heated controversy—even leading to some additional modifications to Florida's APA in 1999. The major issues addressed by the 1999 APA Amendments are restrictions on agency rulemaking authority and agency interpretations of law, issues the Florida legislature brought to the fore with its 1996 APA Amendments.⁵¹

The leading bill considered by the Florida legislature in spring 1999 was introduced by Rep. Ken Pruitt and signed into law by Governor Bush in June 1999. While the reform bill that was signed into law as the 1999 APA Amendments is much improved over the original bill introduced in the Florida legislature, the 1999 APA Amendments continue Florida's renegade approach to administrative procedure reform among the states. The 1999 APA Amendments⁵² make two significant changes to Florida's APA. First, they react to Consolidated-Tomoka, effectively overruling the court's test and again expressing the legislature's preference for specific powers and duties in statutes as the authorization for agency rules.⁵³ Second, they amend Florida's adjudication process to heighten the burden when agencies reject or modify ALJ conclusions of law.⁵⁴

Consolidated-Tomoka attempted to strike a balance between the requirement that an agency have "particular powers and duties" in a statute prior to promulgating a rule,⁵⁵ on the one hand, and its conflicting command that agencies presumptively pursue rulemaking,⁵⁶ on the other. The 1999 APA Amendments revise this balance against agency rulemaking authority, suggesting a continued legislative endorsement of the counterrevolution against agency rulemaking.⁵⁷ In interpreting "particular powers and duties," the Consolidated-Tomoka court held that "[a] rule is a valid exercise of delegated legislative authority if it regulates a matter directly within the class of powers and duties identified in the statute to be implemented."⁵⁸ The 1999 APA Amendments reject this test by revising the APA standard. In the end the legislature appears only to substitute the word "specific" for "particular" in Florida's APA and preclude courts from using the Consolidated-Tomoka test to interpret the new standard,⁵⁹ although the legislature has also required agencies to re-review all of their existing rules for compliance with the 1999 standard.

The 1999 APA Amendments state that agencies may only adopt rules that "implement or interpret the specific powers and duties granted by the enabling statute."⁶⁰ In addition, the 1999 APA Amendments state that "statutory language granting rulemaking authority … shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute."⁶¹ In adopting this provision, the legislature expressed a preference for the standard rejected by the appellate panel in Consolidated-Tomoka. Although the bill states "it is not the intent of the Legislature to reverse the result of any specific judicial decision,"⁶² the 1999 amendments purport to preclude courts and ALJs from applying the Consolidated-Tomoka test in future cases. For example, addressing the language of the test endorsed by the panel in Consolidated-Tomoka, the 1999 amendment states: "No agency shall have the authority to adopt a rule only because it … is within the agency's class of powers and duties."⁶³

[29 ELR 10740]

As with the 1996 standard, this provision not only applies to new rules. It also applies retroactively to existing rules and, as agencies were required to evaluate all rules following the 1996 APA Amendments, they are again required to evaluate all rules for compliance with the 1999 standard. Effectively, the legislature has told agencies that it is not satisfied with their evaluation of whether rules are based in "particular" powers and duties, even though agencies evaluated their rules for compliance with standard well before the Consolidated-Tomoka decision was issued.⁶⁴ Agencies now must re-evaluate all rules to determine whether they are based in "specific" statutory powers and duties. As with the 1996 amendments, the legislature has established a timetable. Each agency is required to provide the Joint Administrative Procedures Committee a list of rules exceeding statutory authority under the "specific" powers and duties standard, and the legislature will again consider whether rule authorization bills are necessary to sustain the rules.⁶⁵ As of July 1, 2001, existing rules will be subject to challenge under the new standard.⁶⁶

A second major modification in the 1999 APA revisions changes agency authority to make legal interpretations in adjudication, tilting the balance toward ALJ or judicial legal interpretations and away from statutory interpretations by agencies. In what is certainly the most sweeping change in years to adjudication under Florida's APA, the 1999 amended APA prohibits agencies from rejecting or modifying ALJ conclusions of law unless they overcome a heightened burden. Under the version of Florida's APA that preceded the 1999 APA Amendments, agencies had the discretion to reject or modify ALJ conclusions of law or policy, although agencies are bound to ALJ findings of fact if they are supported by competent substantial evidence.⁶⁷ The 1981 MSAPA⁶⁸ also provides agencies similar discretion to disagree with the finder of fact on issues of law and policy.

The 1999 Florida APA Amendments require an agency rejecting ALJ conclusions of law or interpretation of regulations to "state with particularity its reasons" and to "make a finding that its substituted conclusion of law or interpretation of an administrative rule is as or more reasonable than that which was rejected or modified."⁶⁹ This new provision restricts an agency's discretion to reject an ALJ's interpretation of a statute or a rule, placing agencies in a posture of justifying their departure from an ALJ order. It also introduces an uncertainty: courts might rubber stamp agency findings that their legal interpretations are reasonable, but it is likely that the legislature intended this provision to allow courts more sweeping authority to second-guess review agency interpretations of law. In this sense, the 1999 APA Amendments risk expanding the authority of ALJs and courts to decide statutory interpretation and policy issues in adjudication as well as rulemaking. Yet neither ALJs nor appellate courts have the degree of expertise and political accountability of agency heads.

Of perhaps less significance, the 1999 APA Amendments also clarify the APA's definition of an "agency"⁷⁰ and prohibit agencies from adopting "retroactive" rules, including rules that are intended to clarify existing law.⁷¹ On the whole, the adopted 1999 APA Amendments are far superior to those proposed in the legislature and approved by committees early in the bill's consideration.⁷² Nevertheless, the 1999 Florida APA Amendments continue to endorse severe restrictions on agency rulemaking, subject existing agency rules to legal challenges that purport to be more restrictive of agency authority to promulgate rules than the 1996 APA Amendments, and require agencies to go through a costly review process that is indistinguishable from that they underwent following the 1996 APA Amendments. Yet, the amendments provide little guidance to agencies, merely substituting the word "specific" for "particular" in Florida's standard restricting rulemaking authority. The amendments also further tilt the balance in statutory interpretation away from agencies and toward ALJs and courts.

What Will Florida's 1996 and 1999 APA Amendments Mean for State Environmental Regulation?

Several in the state urged Governor Bush to veto the 1999 Florida APA reform bill. Environmental protection groups, in particular, were strongly opposed to the changes, and many leading newspapers in the state editorialized against the 1999 APA Amendments.⁷³ David Struhs, the Secretary [29 ELR 10741] of Florida's DEP, also urged a veto of the bill, although he later disavowed any opposition to it.⁷⁴ The 1999 APA Amendments had strong support from the Florida legislature. Governor Bush's general counsel, after meeting with industry lobbyists who supported passage of the bill,⁷⁵ had a comfort level with the bill's content, even though the 1999 APA Amendments significantly reduce the power of Executive Branch agencies vis-a-vis the legislature, courts, and ALJs. Despite the many recommendations that he veto the 1999 APA Amendments, Governor Bush signed them into law in June 1999.

Environmental groups were opposed to the 1999 APA Amendments because they viewed them as an effort to hamstring Florida's DEP and other environmental agencies, such as the water management district whose rules were challenged in Consolidated-Tomoka. Indeed, since the Consolidated-Tomoka case was the catalyst for the bill that became the 1999 Florida APA Amendments and the bill's sponsor, Representative Pruitt, is hardly trusted within the state for his pro-environmental views, from the time of its proposal the bill that became the 1999 APA Amendments was characterized as a pro-development law.⁷⁶

While much environmental opposition to the bill was symbolic—and perhaps overblown⁷⁷—when viewed from the environmental protection perspective there are some legitimate concerns with the 1999 APA Amendments. Most obviously, the amendments restrict existing agency authority to promulgate new rules, making it unlikely that DEP will endorse new environmental regulation programs without express legislative authorization. In addition, the 1999 APA Amendments apply retroactively to all existing rules, threatening the status quo, potentially including many DEP programs that form the basis for EPA's approval of Florida's permitting processes in the air and water contexts.⁷⁸ For example, more than 400 existing environmental rules adopted by DEP and state water management districts are based on the same statutory provision as the rule that was held invalid by the ALJ in Consolidated-Tomoka.⁷⁹ These existing rules, governing water quality standards and surface water management systems, as well as many other environmental regulation programs, may be challenged on similar grounds. Although not all of these rules will be held invalid, some may, and to the extent these rules form the basis for EPA's approval of Florida's environmental regulation programs, federal approval of Florida's programs may be at risk.

Oddly, when the potential effects of the 1999 APA Amendments on environmental policy are evaluated, it is puzzling why business and developers favored the amendments. The 1999 APA Amendments have been touted as good for business, and aligned with a pro-development political agenda. However, it is not at all clear whether the amendments will serve business and development goals. The amendments could, in some circumstances, work to the benefit of environmental protection groups in the state. The 1999 Florida APA Amendments will thwart flexible regulatory programs by agencies such as DEP and may also threaten the cooperative federalism relationship that has developed between state regulators and EPA, perhaps leading to increased EPA oversight over state environmental policy. Thus, it is surprising that business groups themselves did not rebel against the 1999 Florida APA Amendments.

In recent years, business has touted the advantages of flexible approaches to regulation.⁸⁰ While Florida endorsed the goal of flexible regulation in its 1996 APA Amendments, which provide for waiver or variance of agency rules,⁸¹ the provision it added to its APA in 1996 restricting agency rulemaking authority seems to conflict with this goal. The 1999 APA Amendments continue to constrain agency flexibility in program implementation. To insulate themselves from legal attacks, agencies will need to seek new legislation, although to the extent they freeze existing regulations in place with legislation they may sacrifice flexibility in the implementation of environmental programs. In addition, uncertainty regarding the meaning of the new rulemaking standard may discourage agencies from taking affirmative steps to develop new regulatory programs. DEP and other state regulatory agencies will not be able to implement tradeable emissions programs or other cooperative regulatory solutions, such as Project XL, without express and specific legislative guidance. This will reduce the ability of DEP to innovate in its approaches to state environmental [29 ELR 10742] regulation, providing businesses options that are based on voluntary compliance and cooperative approaches to regulation. It thus seems odd that business and development interests favored the 1996 and 1999 APA Amendment restricting agency rulemaking authority.

Further, following Florida's 1999 APA Amendments state implementation of federal environmental programs—in recent years assisted by the cooperative federalism relationship EPA has forged with Florida's environmental regulators—may also be at risk. Where this relationship crumbles, EPA may be able to impose its regulatory will on the state. For example, in 1999 a federal judge ordered Florida regulators to develop total maximum daily load (TMDL) standards on a very tight deadline. Under the federal judge's order and federal law, EPA is required to propose and adopt TMDL standards where DEP fails to meets its deadlines.⁸² Florida has a statute authorizing DEP to develop TMDLs, but to the extent that Florida regulators are hamstrung here or in other water quality contexts, federal regulators may disapprove state regulatory programs and impose their will on the state. Indeed, through citizen suits, environmental groups may have a way of using the 1999 Florida APA Amendments to mobilize additional EPA meddling in Florida environmental policy. This is ironic, especially since the major proponents of the 1996 and 1999 APA Amendments were pro-development, antiregulation interest groups, who would almost certainly rather see Florida's DEP or water management districts—not a federal agency—set water standards.

The problem is hardly limited to water regulation. In recent years, states have become the primary vehicle for implementation of federal environmental laws. According to the Environmental Council of the States, the delegation of federal environmental programs to the states has increased from 45 percent in 1993 to 75 percent in 1998.⁸³ These federal programs include the Clean Air Act and Clean Water Act, but also include the Resource Conservation and Recovery Act, drinking water, and Federal Insecticide, Fungicide, and Rodenticide Act standards. Florida's DEP is on the record as stating, "[a] review of the existing laws makes it clear (to the secretary) that we still have the power to pass new pollution standards if they are needed in order to fulfill the federal programs."⁸⁴ However, statutory authority for existing environmental protection regulations in many contexts is unclear under the 1999 APA Amendments. Existing DEP rules and standards will increasingly be subject to challenges, and may be held invalid for inadequate statutory authority. Without careful legislative evaluation of the statutory authority for existing regulatory programs, as well as new ones, EPA approval of Florida environmental regulation programs may be at risk.

The Problems With Generic Restrictions on Agency Rulemaking Authority

Florida's 1999 APA Amendments also raise concerns beyond the environmental regulation context. In contrast to courts' interpretation of rulemaking requirements under the federal APA, Florida's severe restrictions on the authority of agencies to promulgate rules (or to regulate more generally) absent very specific authority in statutes is, in effect, a "statutory nondelegation" doctrine. The requirement of clear and specific authorization for agency rules in statutes assists state courts in implementing the nondelegation doctrine, which is more strongly enforced in the states than at the federal level.⁸⁵ By striking agency rules for failure to comply with specific grants of authority by the legislature, state courts can achieve the goals of the nondelegation doctrine without explicitly addressing the constitutional issue. Like the constitutional nondelegation doctrine, statutory nondelegation is intended to increase the accountability of agency rulemaking to the will of the legislature.

While well intended, such efforts may lead to many problems in the implementation of regulation. It is overly myopic to view the amendments as having consequences for only environmental regulation. The amendments could have a similar impact on other regulatory areas. Moreover, when examined through the lens of ideals of administrative governance, such as predictability and accountability, generic efforts restrict agency rulemaking authority, such as Florida's 1996 and 1999 APA Amendments, are questionable. First, such restrictions are inherently difficult to interpret, introducing high levels of uncertainty into judicial and agency decisionmaking. Like the constitutional nondelegation doctrine, such restrictions are subject to selective enforcement, and thus are not likely to achieve their intended result. Second, because of the conflict between interpretive ambiguities, on the one hand, and legislative directive to restrict agency authority, on the other, such restrictions may invite courts (and ALJs) to tread into the political process, rather than defer to agency interpretations of statutes. Third, while such restrictions are designed to increase the quality of the legislative process—encouraging legislative deliberation about the specifics of regulatory programs before such programs are authorized—they may have the opposite result, undermining the very accountability they are intended to bolster.

Enforcement Problems

Such restrictions are inherently difficult to interpret, introducing high levels of uncertainty into judicial and agency decisionmaking. As the court itself noted in Consolidated-Tomoka:

A standard based on the sufficiency of detail in the language of the enabling statute would be difficult to define and even more difficult to apply. Specificity is a subjective concept that cannot be neatly divided into identifiable degrees. Moreover the concept is one that is relative. What is specific enough in one circumstance may [29 ELR 10743] be too general in another. An argument could be made in nearly any case that the enabling statute is not specific enough to support the precise subject of a rule, no matter how detailed the Legislature tried to be in describing the power delegated to the agency.⁸⁶

Like the constitutional nondelegation doctrine, statutory restrictions are subject to selective enforcement, and thus are not likely to achieve their intended result.⁸⁷

The problem becomes apparent when the opinion in Consolidated-Tomoka is contrasted with Department of Business & Professional Regulation v. Calder Race Course, Inc.,⁸⁸ an opinion issued by a different panel of the same court on the same day. In Calder, the court applied Florida's statutory nondelegation section to uphold an ALJ's invalidation of Division of Pari-Mutuel Wagering rules authorizing warrantless searches or pari-mutuel wagering facilities. As the general basis for its rulemaking authority, the Division cited statutory provisions that empowered it to "'adopt reasonable rules for the control, supervision, and direction of all applicants, permitees, and licensees and for the holding, conducting, and operating of all racetracks, race meets, and races held in this state.'"⁸⁹ In addition, the Division cited a provision of the same statute that authorized it to conduct "investigations."⁹⁰ The court noted, however, that since "nothing in this subsection identifies the power that the rule attempts to implement, i.e., to search,"⁹¹ the agency's proposed rules exceeded its grant of authority.

The Consolidated-Tomoka and Calder duo illustrates the indeterminacy of judicial application of Florida's statutory nondelegation standard. In Calder, the court concluded that the "'class of powers and duties identified in the statute'" did not include the power to conduct warrantless searches.⁹² At the same time, it seems that a reasonable interpretation of the statute authorizing rulemaking and investigations by the Division could include the power to conduct warrantless searches. Following Calder, it is clear that courts will enforce Florida's statutory nondelegation doctrine; yet for agencies it is not at all clear when. In addition, for the legislature, which needs to evaluate existing and new statutes for compliance, it is not clear how much specificity is required. Thus, to the extent we rely on courts to implement restrictions on regulatory authority, statutory nondelegation poses some of the same enforcement problems as constitutional nondelegation: courts are simply not capable of articulating a coherent and consistent set of standards for evaluating the sufficiency of grants of power to administrative agencies.

And, as the 1999 Florida APA Amendments illustrate, even when a legislative body attempts to clarify the standard agencies may still have no meaningful guidance as to what the amended statutory nondelegation standard means and how it will be applied. Following the 1999 APA Amendments, courts will have to come up with a new definition of "specific," presumably one that is not as broad as Consolidated-Tomoka's definition of "particular." But, as the Consolidated-Tomoka and Calder duo illustrate, this will not occur without litigation, both before ALJs and appellate courts. As with the constitutional nondelegation doctrine,⁹³ the development of a determinate standard will likely prove an impossible task for ALJs or appellate courts. Thus, the Florida legislature's continued tinkering of the language of its standard restricting rulemaking authority should suggest that the task of defining the scope of agency rulemaking authority by general language in statutes is a questionable effort at enhancing accountability, although members of the legislature have been quick to claim credit for reigning in bureaucracy.⁹⁴

Effects on Agency Accountability: Who Should Interpret the Statutory Authority to Regulate?

Institutionally a legislature is equally, if not more, incapable of articulating a clear and understandable nondelegation standard. No single standard articulated in by a legislature in advance of its evaluation of a particular regulatory program, especially a standard that is the product of political compromise, is likely to provide guidance for regulators. At the same time, statutory nondelegation encourages legal challenges to agency regulations. Because of the tension between interpretive ambiguities, on the one hand, and a discernable legislative intent to restrict agency authority, on the other, statutory nondelegation invites courts (and, in some states, ALJs) to tread into the political process, rather than defer to agency interpretations of statutes. This runs the risk of undermining the agency accountability goals proponents of statutory nondelegation often embrace.

In Calder, for example, a Florida appellate court applied its own independent interpretation of whether investigations included warrantless searches; despite the ambiguity in the legislature's grant of power, the court refused to defer to the agency's reasonable interpretation that investigations included warrantless searches.⁹⁵ This raises the issue of who interprets statutes, an issue that is not as settled in the states as it is in the federal system.

Like the courts of many other states, Florida courts endorse a doctrine similar to Skidmore (giving some weight to the agency interpretation)⁹⁶ if not Chevron (accepting the [29 ELR 10744] agency's reasonable interpretation where the statute is unclear or ambiguous)⁹⁷ deference in federal courts. If an agency interpretation of a statute in its regulatory area "is within the range of permissible interpretations of the statute,"⁹⁸ in Florida the standard or review is well established: courts defer to the agency interpretation, even though other interpretations may be permissible or preferable. While well established as a standard for reviewing agency interpretations of ambiguous statutory language, Florida courts also recognize that in some instances deference is not appropriate. Some Florida courts have stated that they do not defer to "clearly erroneous" agency interpretations, although they also suggest that they do not review statutory interpretations de novo for reasonableness⁹⁹; thus, clearly erroneous review might be thought of as the judicial basis for rejecting agency interpretations that conflict with clear and unambiguous statutory language, paralleling the step-one Chevron inquiry.¹⁰⁰ Florida courts also express some reluctance to defer to an agency statutory interpretation "if the statute is unrelated to the functions of the agency."¹⁰¹ Despite these exceptions for clearly erroneous interpretations or interpretations of a statute outside of an agency's regulatory area, principles of deference to agency statutory interpretations are well established in Florida courts.

While deference to agency interpretation of ambiguous statutes is well accepted in Florida, statutory nondelegation threatens it. By requiring courts to assess the specificity of statutory language, statutory nondelegation invites more frequent de novo review of agency statutory interpretation than is expected under the conventional approach. This risks judicial second-guessing of agency expertise, as well as reduced accountability, to the extent judges, not as politically accountable as agency heads, are the primary interpreters of statutes.

Further complicating this issue, in some states, such as Florida, rules are subject to challenge before ALJs. ALJs, however, are not bound to agency statutory interpretations, nor does state law always require clearly ALJ deference to agency statutory interpretations. Unlike agency interpretations, which might be legitimated by reference to political accountability or agency expertise, statutory interpretation by ALJs, impartial generalists, should not be subject to the same deference. Thus to the extent courts review final agency action by ALJs, either deference to the agency or de novo review is necessary to ensure accountable statutory interpretation.

When the confusion over review of state agency interpretation of statutes is coupled with the uncertain status of arbitrary and capricious review in many states,¹⁰² a need for state APA reformers to clarify the role of courts in reviewing agency rules becomes apparent. One change proposed in Florida in 1999 would have modified the long-standing principle that courts may defer or give some weight to agency interpretations of law. A committee amendment to the 1999 Florida APA reform bill would have prohibited courts from deferring or giving any weight to agency interpretations of law in rule challenge proceedings, as they do under current case law in the federal system, Florida, and many states. This amendment stated that "judges hearing appeals of agency rules shall not defer, or otherwise give any special weight, to an agency's interpretation of law or a rule."¹⁰³

[29 ELR 10745]

Because of a late modification to the bill, the version of the 1999 APA Amendments that passed the legislature and was signed by Governor Bush did not contain this proposed amendment.¹⁰⁴ The proposed amendment, introduced in part because of the statutory interpretation issue brought to the fore by statutory nondegelation, stood to greatly enhance the role of courts in reviewing of agency rulemaking, at the costs of political accountability and expertise, neither of which are possessed by reviewing courts. Perhaps it would have been better for reformers to address judicial review independent of the statutory nondelegation issue, where conflicts between agency, ALJ, and judicial statutory interpretation are at the heart of prominent regulatory disputes involving constituents with entrenched positions in disputes, such as the matter at issue in Consolidated-Tomoka.

Effects on Legislative Process and Accountability

Statutory nondelegation may work as a precommitment device of sorts for a legislature, deterring future legislatures from delegating without very specific statutory guidance. In practice, though, it is extremely difficult for a legislature to avoid delegation of some policy decisions to agencies, since reaching consensus on specific statutory language may prove costly or impossible. Nor does the legislature possess high levels of expertise. Especially for part-time state legislatures, such as Florida's, delegation of policy decisions to agencies is a pragmatic way to manage the legislative decisionmaking process.

Even if a legislature can use statutory nondelegation to discipline itself against delegating policy decisions, it is questionable whether statutory nondelegation enhances legislative accountability. While such restrictions are in part designed to improve the quality of the legislative process—encouraging legislative deliberation about the specifics of regulatory programs before such programs are authorized—they may have the opposite result, placing legislatures in the reactive posture of enacting en masse "compliance bills" ratifying agency regulations. In Florida, few, if any, of the statutes authorizing rulemaking authority for existing rules were the subject of intense legislative deliberation and debate regarding the scope of delegated power.

If accountability in the form of more specific and clearer statutes authorizing agency rulemaking is the goal of statutory nondelegation, there may be more effective means for achieving this goal. For example, better (i.e., more specific and clearer) grants of legislative authority could be adopted if the legislature considered limitations on agency rulemaking authority in subject-specific contexts, referring these to the legislative committees responsible for regulating certain areas. Under this approach, the legislature would be responsible for specifically prohibiting an agency from regulating certain activities, rather than attempting to mandate statutory precision generally through the judiciallyimposed APA statutory nondelegation. This is similar to the incentives federal courts have set for Congress in its consideration of laws. To the extent state legislatures affirmatively vest enforcement of statutory nondelegation with courts (and also, as in Florida, ALJs), they can claim credit for limiting the scope of agency powers without taking responsibility for defining these powers in specific regulatory contexts. However, legislative definition and enforcement of agency rulemaking powers in specific regulatory contexts would lead to more responsible decisionmaking by a legislature.

Conclusion

Florida's 1999 APA Amendments are not limited in their impact to environmental law. They will affect a range of regulatory activities: because of rulemaking restrictions, agencies must have clear statutory authorization to adopt new rules and to maintain existing regulations, regardless of the subject matters they regulate. The new APA restrictions sacrifice flexibility in the executive implementation of environmental and other regulations, but their claim to improving the accountability of regulations in environmental and other contexts is questionable.

1. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

2. 1996 Fla. Laws ch. 96-159 (codified in scattered sections of FLA. STAT. ANN. ch. 120 (West Supp. 1997).

3. THE FEDERALIST No. 44 (James Madison).

4. 5 U.S.C. §§ 500-596, available in ELR STAT. ADMIN. PROC.

5. Id. § 553(b)(2).

6. National Tour Brokers Ass'n v. United States, 591 F.2d 896, 900, 903 (D.C. Cir. 1978) (observing the sole statute cited in notice was understood to need cengressional alteration or amendment and the rule finally issued was based on different statutory authorization than the proposed rule). But see Natural Resources Defense Council, Inc. v. Hodel, 618 F. Supp. 848, 864-65, 16 ELR 20096, 20103 (E.D. Cal. 1985) (agency's failure to cite specific statutory authorization for a rule in its notice of proposed rulemaking is not itself a fatal procedural error where statutory authorization is given in other referenced statutes).

7. 411 U.S. 356 (1973).

8. Id. at 369 (citations omitted).

9. Id. at 371-72.

10. Id. at 372.

11. Association of Am. R.Rs. v. Surface Transp. Bd., 161 F.3d 58, 60 (D.C. Cir. 1998).

12. Id. at 62-63.

13. 467 U.S. 837, 842-43, 14 ELR 20507, 20508-09 (1984). Under Chevron, federal courts reviewing agency interpretations of statutes apply a two-part test. At step one, a court asks "whether Congress has directly spoken to the precise question at issue." Id. at 842, 14 ELR at 20508. If so, "the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 14 ELR at 20508. At step two, a Court defers to the agency's permissible construction: "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 14 ELR at 20509 (internal cites omitted).

14. Association of Am. R.Rs., 161 F.3d at 63-64.

15. See, e.g., Kelley v. U.S. Environmental Protection Agency, 15 F.3d 1100, 1106, 24 ELR 20511, 20513 (D.C. Cir. 1994) (invalidating agency rule defining scope of lender liability as "in excess of agency statutory jurisdiction, authority or limitations" under § 706 of the APA because court read statutory language to suggest Congress "quite consciously" left liability issues to be decided by courts, not EPA); Global Van Lines, Inc. v. Interstate Commerce Comm'n, 714 F.2d 1290, 1294-95 (5th Cir. 1983) (invalidating rule regulating entirely new sector of the industry based solely on general statutory grants of authority, including a provision that authorized issuance of only "'such rules and regulations … as may be necessary to carry out [the other] provisions'") (quoting Interstate Commerce Act, pt. IV, ch. 318, § 403(a), 56 Stat. 284, 285 (1942) (superseded 1978)).

16. A 1999 D.C. Circuit panel invoked the nondelegation doctrine as a reason for reversing EPA's interpretation of the scope of its authority to set ambient air quality standards under the Clean Air Act. See American Trucking Ass'n v. U.S. Environmental Protection Agency, 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999), appeal pending. While the D.C. Circuit panel drew on the rhetoric of nondelegation, it did not strike down the statutory provision but only EPA's reading of it. See id. at 1037, 29 ELR at 21073. In the panel's view, EPA's reading of its authority under the statute would have made Congress' action unconstitutional.

17. See, e.g., Trans-Pacific Freight Conference of Japan/Korea v. Federal Maritime Comm'n, 650 F.2d 1235 (D.C. Cir. 1980), cert. denied, 451 U.S. 984 (1981) (upholding agency authority to promulgate rules regarding matters previously adjudicated where Congress has granted both rulemaking and adjudicative authority); Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620, 6 ELR 20467 (2d Cir. 1976) (upholding EPA's reference to general authority for rules, but reversing and remanding on other grounds). Cf. Village of Bergen v. Federal Energy Regulatory Comm'n, 33 F.3d 1385 (D.C. Cir. 1994) (deferring to agency's interpretation of its own jurisdiction as a reasonable interpretation of ambiguous statutory language). One of the reasons courts defer to agency interpretations of jurisdiction is that they are unable to cogently distinguish between jurisdictional and nonjurisdictional interpretations. See Quincy M. Crawford, Chevron Deference to Agency Interpretations That Delimit the Scope of the Agency's Jurisdiction, 61 U. CHI. L. REV. 957 (1994).

18. 5 U.S.C. § 706 (1994).

19. 128 CONG. REC. S1217 (daily ed. Mar. 24, 1982). For criticism of this provision of the Bumpers Amendment, see Ronald M. Levin, Review of "Jurisdictional" Issues Under the Bumpers Amendment, 1983 DUKE L.J. 355, 371-78; James T. O'Reilly, Deference Makes a Difference: A Study of Impacts of the Bumpers Judicial Review Amendment, 49 U. CIN. L. REV. 739, 773-76 (1980).

20. S. 343, 104th Cong. § 627(a) (1995).

21. See Jim Rossi, The 1996 Revised Florida Administrative Procedure Act: A Rulemaking Revolution or Counter-Revolution?, 49 ADMIN. L. REV. 345 (1997).

22. WASH. REV. CODE ANN. § 34.05.322 (West Supp. 1999).

23. FLA. STAT. ANN. § 120.536(1) (West Supp. 1999) (amended 1999). As is discussed below, the language of this standard was amended in 1999, but its overall structure remains in Florida's APA.

24. As the Florida Supreme Court stated:

Where the empowering provision of a statute states simply that an agency may "make such rules and regulations as may be necessary to carry out the provisions of this Act," the validity of the regulations promulgated thereunder will be sustained as long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or capricious.

General Tel. Co. of Fla. v. Florida Pub. Serv. Comm'n, 446 So. 2d 1063, 1067 (Fla. 1984) (quoting Agrico Chem. Co. v. State Dep't of Envtl. Regulation, 365 So. 2d 759 (Fla. Ct. App. 1978), cert. denied, 376 So. 2d 74 (Fla. 1979); Florida Beverage Corp. v. Wynne, 306 So. 2d 200 (Fla. Ct. App. 1975)).

25. See FLA. STAT. ANN. § 120.52(8) (West Supp. 1999).

26. See id. § 120.56 (West 1996). Minnesota also provides for rule validity challenges before an ALJ. See WILLIAM J. KEPPEL, 21 MINNESOTA PRACTICE: ADMINISTRATIVE PRACTICE AND PROCEDURE 149-64 (1998).

27. See FLA. STAT. ANN. § 120.536 (West Supp. 1999) (amended 1999).

28. See id. § 120.536(2) (amended 1999).

29. See JOINT ADMINISTRATIVE PROCEDURES COMMITTEE ANN. REP. 62 (1997).

30. The following bill numbers were passed as rules authorizing bills: S. Res. 734, 16th Leg. (Fla. 1999); S. Res. 768, 16th Leg. (Fla. 1999); S. Res. 770, 16th Leg. (Fla. 1999); S. Res. 1346, 16th Leg. (Fla. 1999); S. Res. 1342, 16th Leg. (Fla. 1999); S. Res. 1350, 16th Leg. (Fla. 1999); S. Res. 1706, 16th Leg. (Fla. 1999); S. Res. 1762, 16th Leg. (Fla. 1999); S. Res. 1152, 16th Leg. (Fla. 1999); S. Res. 1720, 16th Leg. (Fla. 1999); S. Res. 1708, 16th Leg. (Fla. 1999); S. Res. 1700, 16th Leg. (Fla. 1999); S. Res. 1702, 16th Leg. (Fla. 1999); S. Res. 2316, 16th Leg. (Fla. 1999); S. Res. 2000, 16th Leg. (Fla. 1999); S. Res. 2314, 16th Leg. (Fla. 1999); S. Res. 1722, 16th Leg. (Fla. 1999); S. Res. 1144, 16th Leg. (Fla. 1999); S. Res. 1684, 16th Leg. (Fla. 1999); S. Res. 1332, 16th Leg. (Fla. 1999); S. Res. 1410, 16th Leg. (Fla. 1999); S. Res. 1716, 16th Leg. (Fla. 1999); S. Res. 1348, 16th Leg. (Fla. 1999); S. Res. 1232, 16th Leg. (Fla. 1999); S. Res. 1334, 16th Leg. (Fla. 1999); S. Res. 1336, 16th Leg. (Fla. 1999); S. Res. 1436, 16th Leg. (Fla. 1999); S. Res. 1440, 16th Leg. (Fla. 1999); S. Res. 1164, 16th Leg. (Fla. 1999); S. Res. 1054, 16th Leg. (Fla. 1999); S. Res. 1052, 16th Leg. (Fla. 1999); S. Res. 846, 16th Leg. (Fla. 1999); S. Res. 1710, 16th Leg. (Fla. 1999). A few (three or four) rules authorizing bills did not pass, and remain under consideration.

31. 717 So. 2d 72 (Fla. Ct. App. 1998). For discussion of the case and its implications, see Martha Mann. St. Johns River Water Management District v. Consolidated-Tomoka Land Co.: Defining Agency Rulemaking Authority Under the 1996 Revisions to the Florida Administrative Procedure Act, 26 FLA. ST. U. L. REV. 517 (1999).

32. See Rossi, supra note 21, at 352-353 (discussing the provisions of the 1996 APA Amendments).

33. Consolidated-Tomoka, 717 So. 2d at 75.

34. Id. at 76 (quoting FLA. STAT. ANN. § 120.52(8) (West Supp. 1996)).

35. Id. at 78 (quoting FLA. STAT. ANN. § 120.52(8) (West Supp. 1996)).

36. Id. at 79.

37. Id. at 79, 81.

38. Id. at 79.

39. Id. at 79-80.

40. Id. at 79.

41. Id. at 79 (emphasis added).

42. Id. at 80 (emphasis added).

43. Id.

44. Id.

45. Id.

46. Id.

47. FLA. STAT. ANN. § 120.54(1)(a) (West Supp. 1999).

48. Id.

49. See St. Johns River Water Management Dist. v. Consolidated-Tomoka Land Co., 717 So. 2d 72, 80 (Fla. Ct. App. 1998).

50. Id.

51. Cf. Rossi, supra note 21, at 361 (predicting that judicial review of agency rulemaking authority will become an issue in interpreting Florida's new restrictions on rulemaking authority).

52. The amendments are contained in CS/HB 107 (Chapter No. 99-379, Laws of Florida). A Final Analysis on the amendments was issued by the Committee on Governmental Rules and Regulations of the Florida House of Representatives on June 30, 1999.

53. See amendment to Fla. Stat. §§ 120.52(8), 120.536, CS/HB 107, 179th Leg. (Fla. 1999) (enrolled bill), signed by Gov. Jeb Bush, June 17, 1999.

54. See amendment to Fla. Stat. § 120.57, CS/HB 107, 179th Leg. (Fla. 1999) (enrolled bill), signed into law by Gov. Jeb Bush, June 17, 1999.

55. FLA. STAT. ANN. § 120.536(1) (West Supp. 1999).

56. Id. § 120.54(1)(a)(1).

57. Cf. Rossi, supra note 21 (characterizing Florida's 1996 APA reforms as a counterrevolution against rulemaking).

58. St. Johns River Water Management Dist. v. Consolidated-Tomoka Land Co., 717 So. 2d 72, 80 (Fla. Ct. App. 1998).

59. Although earlier versions of the bill used the word "detailed," the word "specific" was substituted later in the legislative process.

60. Amendment to Fla. Stat. §§ 120.52(8), 120.536(1), CS/HB 107, 179th Leg. (Fla. 1999) (enrolled bill), signed into law by Gov. Jeb Bush, June 17, 1999.

61. Id.

62. Id.

63. Id.

64. Consolidated-Tomoka was issued in summer 1998, while the 1996 amended APA required agencies to evaluate their existing rules for compliance with the rulemaking restrictions by October 1, 1997. See FLA. STAT. ANN. § 120.536(2) (West Supp. 1999).

65. See amendment to Fla. Stat. § 120.536(2)(b), CS/HB 107, 179th Leg. (Fla. 1999) (enrolled bill), signed into law by Gov. Jeb Bush, June 17, 1999.

66. See id. However, if an agency has failed to include a rule on the list of rules it submits to the legislature, the rule may be subject to immediate challenge. See id. at § 120.536(3).

67. Prior to the 1999 APA Amendments, § 120.57(1)(l) stated:

The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction …. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence.

FLA. STAT. ANN. § 120.57(1)(l) (West Supp. 1999).

68. MODEL STATE ADMINISTRATIVE PROCEDURE ACT, § 4-215 (1981), 15 U.L.A. 90-91 (1990).

69. See amendment to Fla. Stat. § 120.57(1)(l), CS/HB 107, 179th Leg. (Fla. 1999) (enrolled bill), signed into law by Gov. Jeb Bush, June 17, 1999. The prefiled bill would have allowed an agency to modify an ALJ's conclusion of law only if it is "clearly erroneous," but later versions of the bill removed this standard of review. Compare id. with proposed amendment Fla. Stat. § 120.57(1)(l), CS/HB 107, 179th Leg. (Fla. 1999) (prefiled bill).

70. See amendment to Fla. Stat. § 120.52(11), CS/HB 107, 179th Leg. (Fla. 1999) (enrolled bill), signed into law by Gov. Jeb Bush. June 17, 1999.

71. See amendment to Fla. Stat. § 120.54(1)(f), CS/HB 107, 179th Leg. (Fla. 1999) (enrolled bill), signed into law by Gov. Jeb Bush. June 17, 1999. The amendment did not define retroactive, not did it explain how this new provision interacts with other provisions of § 120.54, which allow agencies to apply rules to clarify existing laws so long as they have initiated rulemaking in good faith. The provision was intended to preclude future application of the court's holding in Environmental Trust v. Department of Envtl. Protection. 714 So. 2d 493, 500 (Fla. Ct. App. 1999) (holding retroactive application of a rule may be proper if the rule merely clarifies or explains a previous rule for future cases).

72. The adopted amendments differ from some proposals considered by the legislature, including a proposal to require agencies to bear the burden of going forward in a rule challenge and a prohibition on judicial deference to agency interpretations of law.

73. See Julie Hauserman, New Law Will Ease State Rules Battles, ST. PETERSBURG TIMES, June 18, 1999, at B1 (noting, "most of the state's big environmental groups opposed it, including the Florida Wildlife Federation, the Florida Audubon Society, the Florida Chapter of the Sierra Club, the Florida Chapter of the American Planning Association, the Florida League of Conservation Voters and 1000 Friends of Florida."); see also Editorial, A Bad Sign, ST. PETERSBURG TIMES, June 25, 1999, at A16 (characterizing the 1999 APA Amendments as "good news for developers at the environment's expense"); Editorial, Bad Bill to Lousy Law; Environmental Protection Rules Are in Jeopardy, SARASOTA HERALD-TRIB., June 23, 1999, at A1 (stating 1999 APA Amendments jeopardize "several thousand environmental-protection rules enforced by more than 100 state agencies"); Editorial, Eco-Havoc Awaits State Unless Bush Prevents It, PALM BEACH POST, June 17, 1999, at A2 (characterizing the bill as "an attempt to wipe every environmental and growth-management law in Florida off the books, taking with them every law regarding state functions as diverse as agriculture and prisons").

74. See Julie Hauserman, DEP Chief Warns Against Rules Bill, ST. PETERSBURG TIMES, June 17, 1999 at B1 (reporting that DEP Secretary David Struhs urged Governor Bush to veto the bill because it "tips the balance too far" toward the legislature, and would make government "less efficient and potentially less effective"). See e-mail (Veto Recommendation for Amendments to the Administrative Procedure Act) from DEP Secretary David Struhs, to Gov. Jeb Bush (June 11, 1999) (on file with author). The Secretary of DEP later disavowed his position on the bill when it became clear that Bush would sign it. See Hauserman, supra note 73; see also Ledmilla Lelis, Developers Cheer, Others Fear New Law, ORLANDO SENTINEL, July 4, 1999, at K1.

75. See Shirish Date, Bush Down to Wire on Controversial Bill, PALM BEACH POST, June 17, 1999, at A13 (noting that Governor Bush's assistant general counsel Frank Jimenez held a meeting and signed off on a compromise acceptable to two lobbyists for industry and developers, but that no one invited lobbyists for environmental groups who had been following the bill all year).

76. See Date, supra note 75 (noting that Representative Pruitt "won a specially created 'Worst Legislator of the Year' award from environmental groups in 1992 and 1993").

77. See Editorial, Eco-Havoc, supra note 73.

78. "'It [the 1999 APA Amendment] has armed developers with a new weapon,' said Terrell Arline, legal director for the green group 1,000 Friends of Florida. He said it could have a chilling effect on agencies that may be hesitant to enforce some existing regulations." Lelis, supra note 74.

79. See FLA. STAT. ANN. § 373,413 (West Supp. 1999). See also Terrell K. Arline, The Environmental Impacts of the Administrative Procedures Act Bill, SECTION REPORTER, FLORIDA BAR ENVIRONMENTAL AND LAND USE LAW SECTION (June 1999) (last visited Sept. 4, 1999) available at http://www.eluls.org/june1999_arline_l.html.

80. For discussion of such reform suggestions, see Mark Seidenfeld, Bending the Rules: Flexible Regulation and Constraints on Agency Discretion, 51 ADMIN. L. REV. 429 (1999).

81. See FLA. STAT. ANN. § 120.542 (West Supp. 1999).

82. See Consent Decree, U.S. Dist Ct., N.D. Fla. Civ. Action File No. 4:98CV356-WS (on file with author). See also 33 U.S.C. § 1313(d)(1)(C), ELR STAT. FWPCA § 303(d)(l)(C) (Federal Water Pollution Control Act) (requiring that the states, and if not the states, then EPA. to develop TMDLs for pollutants found suitable for TMDL calculation).

83. See R. Steven Brown. TheStates Protect the Environment, http://www.sso.org/ecos/statesarticle.htm (last visited August 17, 1999).

84. Michael Peltier. Bill May Soon Haunt Bush Administration, VERO BEACH PRESS J., June 19, 1999, at A12 (quoting DEP spokesman David Struhs).

85. See Jim Rossi, Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States, 52 VAND. L. REV. 1167 (1999) (discussing the nondelegation doctrine in the states and explaining the institutional design factors that may make it more necessary than in the federal system).

86. Consolidated-Tomoka, 717 So. 2d at 80.

87. See, e.g., Richard J. Pierce Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 N.Y.U. L. REV. 1239, 1244-47(1989); Richard J. Pierce Jr., Political Accountability and Delegated Power: A Response to Professor Lowi, 36 AM. U.L. REV. 391, 402-07 (1987); Carl McGowan, Congress, Court, and Control of Delegated Power, 77 COLUM. L. REV. 1119, 1128-30 (1977). See also SORTIRIUS BARBER, THE CONSTITUTION AND THE DELEGATION OF LEGISLATIVE POWER 62, 76 (1975) (describing nondelegation doctrine as "heavily encrusted with the constructs of judicial myth-making" and revealing a "judicial propensity to manipulate…."); LOUIS JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 51, 56 (1965) (finding court's reasoning in the nondelegation context as "hopelessly fictional rationalization" and "sheer illusion").

88. 724 So. 2d 100 (Fla. Ct. App. 1998).

89. Id. at 102 (quoting FLA. STAT. ANN. § 550.0251(3) (West 1992)).

90. Id. (quoting FLA. STAT. ANN. § 550.0251(9) (West 1992)).

91. Id. at 102.

92. Id. at 105 (quoting Consolidated-Tomoka, 717 So. 2d at 80).

93. See supra note 87.

94. See Hauserman, supra note 73 (noting that business lobbyists and members of the state legislature, including Representative Pruitt, the bill's key sponsor, "applauded Bush's action [of signing the 1999 APA Amendments into law] as a way to rein in the power of Tallahassee bureaucrats").

95. Calder, 724 So. 2d at 103.

96. Under Skidmore, the degree of weight may "depend on the thoroughness evident in [the agency's] consideration, the validity of its reasoning, its consistency with earber and later pronouncements, and all those factors which give it the power to persuade, if lacking power to control." Skidmore v. Swift. 323 U.S. 134, 140 (1944). The approach is used in many states. See William A. McGrath et al., Project: State Judicial Review of Administrative Action, 43 ADMIN. L. REV. 571, 768-70 (1991).

97. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 14 ELR 20507, 20508 (1984); see also supra note 13 (discussing Chevron test). According to a 1990 study, 11 states had adopted tests that bear similarity to strong Chevron deference. See McGrath et al., supra note 96, at 763-66, Florida has adopted an analysis very similar to Chevron.

98. State Dep't of Health & Rehabilitative Servs. v. Framat Realty, Inc., 407 So. 2d 238, 241-42 (Fla. Ct. App. 1981). See also Department of Envtl. Regulation v. Goldberg, 477 So. 2d 532, 534 (Fla. 1985) ("Courts should afford great deference to administrative interpretations of statutes which the agency is required to enforce."); Pringle v. Marine Fisheries Comm'n, 732 So. 2d 395, 397 (Fla. Ct. App. 1999) ("The courts are bound to give deference to an agency's interpretation of statutes the agency is charged with implementing."); Smith v. Crawford, 645 So. 2d 513, 520-21 (Fla. Ct. App., 1994) (providing deference to agency interpretation of statute); Harloff v. City of Sarasota, 575 So. 2d 1324, 1327 (Fla. Ct. App. 1991) ("Because agency boards are charged with the responsibility of enforcing the statutes which govern their area [sic] of regulation, courts give great weight to their interpretation of those statutes"). Accord, Board of Optometry v. Florida Soc'y of Opthamology, 538 So. 2d 878, 885 (Fla. Ct. App. 1988) (suggesting agency's interpretation need not be the most desirable one, but needs only to be within the range of permissible interpretations).

99. See D.A.B. Constructors, Inc. v. Department of Transp., 656 So. 2d 940, 944 (Fla. Ct. App. 1995) ("An agency's construction of a statute which it administers is entitled to great weight and will not be overturned unless the agency's interpretation is clearly erroneous,"); Orange Park Kennell Club, Inc. v. Department of Bus. & Prof 1 Regulation, 644 So. 2d 574. 576 (Fla. Ct. App. 1994) (noting that, since the court is unable to determine that agency's interpretation of a statute is "clearly erroneous," deference is appropriate).

100. See Department of Ins. v. Bankers Ins. Co., 694 So. 2d 70 (Fla. Ct. App. 1997) ("Where a statute draws an uncertain boundary, judicial deference to an agency's jurisdictional determination is appropriate."); Willette v. Air Prods., 700 So. 2d 397, 399 (Fla. Ct. App. 1997) (rejecting an agency's statutory interpretation as "unmistakably at odds with the clear statutory language"); Associated Mortgage Investors v. Department of Bus. Regulation, 503 So. 2d 379, 380 (Fla. Ct. App.), review dismissed, 506 So. 2d 1040 (Fla. 1987) ("interpretation, made by the agency charged with enforcing a statute, should be accorded great deference unless there is clear error or conflict with the intent of the statute."). See also Okeechobee Health Care v. Collins, 726 So. 2d 775 (Fla. Ct. App. 1998) (distinguishing Air Prods., 700 So. 2d at 399 and applying deference to ambiguous statutory language). Clearly erroneous (or "clear err") is a troubling standard to apply to the review of statutes, as it typically is a standard of review for findings of fact. Some Florida appellate courts have conflated, or confused, the clearly erroneous standard in reviewing statutes with a "reasonableness" test. See Las Olas Tower Co. v. City of Ft. Lauderdale, 1999 WL 311248 (Fla. Ct. App. 1999) (noting preference for deference to the agency, but "when the agency's construction of a statute amounts to an unreasonable interpretation, or is clearly erroneous, it cannot stand."). In the rulemaking context, this confusion may be less prevalent because Florida's APA purports to limit courts from independently assessing the rationality of an agency's reasoning process. See FLA. STAT. ANN. § 120.68(9) (West 1999) (prohibiting reviewing courts from applying arbitrary and capricious review of rules apart from their review of an ALJ's findings regarding arbitrary and capricious agency action). Nevertheless, when misapplied, in Florida "clearly erroneous" may be one back door way to secure arbitrary and capricious review of agency statutory interpretation where it otherwise is not allowed.

101. Chiles v. Department of State, 711 So. 2d 151, 155 (Fla. Ct. App. 1998).

102. Bill Funk, in his 1991 survey of state rationality review, reports that only eight states follow the federal example of providing a statutory basis for judicial review of the rationality of rules. William Funk. Rationality Review of State Administrative Rulemaking, 43 ADMIN. L. REV. 147, 154 (1991).

103. See proposed amendment to Fla. Stat. § 120.68, HB 107cl, 179th Leg. (Fla. 1999) (first version approved by the House of Representatives Committee on Governmental Rules and Regulation); see also House of Representatives Committee on Governmental Rules and Regulations Analysis, Report onHB 107 (Jan. 19, 1999), at 11 (adopting amendment).

104. Compare proposed amendment to Fla. Stat. § 120.68, HB 107cl, 179th Leg. (Fla. 1999) (first version approved by the House of Representatives Committee on Governmental Rules and Regulations) with CS/HB 107, 179th Leg. (Fla. 1999) (enrolled bill), signed into law by Gov. Jeb Bush, June 17, 1999.