IS THE ENVIRONMENTAL APPEALS BOARD UNCONSTITUTIONAL OR UNLAWFUL?

摘要

The Supreme Court's decision in Lucia v. SEC, holding that Administrative Law Judges are officers of the United States, raises various questions regarding other administrative officials not traditionally considered officers of the United States. This Article addresses the question whether the Environmental Protection Agency's Environmental Appeals Board (EAB) is unconstitutional or unlawful. First, the Article establishes that in light of Lucia and other case law, the members of the EAB are clearly officers of the United States, but probably inferior officers. The question then is whether Congress has provided for their appointment by the Administrator of EPA, and there is no statute clearly so providing. The Article assesses whether the creation of the government-wide Senior Executive Service could constitute such authorization. Moreover, even if it did, it is not clear that the Administrator has the authority to delegate to the EAB his final decisional authority in EPA adjudications in light of other specific statutory authorizations of delegation but the lack of such an authorization with regard to the EAB. The Article does not suggest that it is unwise policy to have the EAB act in lieu of the Administrator to make final agency decisions in adjudications, but it does suggest that the current legal authority for the EAB is on shaky ground.