Is the Environmental Appeals Board Unconstitutional or Unlawful?

13 Pages Posted: 2 May 2019

Date Written: April 9, 2019

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.

Keywords: appointments, delegation, statutory interpretation, administrative law, constitutional law

JEL Classification: k23,k32

Suggested Citation

Funk, William F., Is the Environmental Appeals Board Unconstitutional or Unlawful? (April 9, 2019). Environmental Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3368636

William F. Funk (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219-7799
United States
503-768-6606 (Phone)
503-768-6671 (Fax)

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