Determining the Validity of Regulations Under the APA

Determining the Validity of Regulations Under the APA By Chris Micheli

            The judicial branch in California has the ultimate say over the validity of regulations that are promulgated by the executive branch’s agencies. How do state courts consider the validity of regulations?

            As an initial matter, in assessing the validity of an administrative rule, the court’s task is to inquire into the legality of the challenged regulation, not its wisdom. In reviewing the legality of a regulation or policy adopted pursuant to a delegation of legislative power, courts are limited to determining whether it is within the scope of authority conferred on the agency and is reasonably necessary to effectuate the purpose of the statute. San Diego Nursery Company v. Agricultural Labor Relations Board (1979) 100 Cal.App.3d 128

The task of a court considering the validity of a regulation promulgated by an agency is to decide whether the agency reasonably interpreted its legislative mandate. In re McGhee (2019) 246 Cal.Rptr. 3rd 834 An administrative agency has no discretion to promulgate a regulation that is inconsistent with the governing statutes. Terhune v. Superior Court (1998) 65 Cal.App. 4th 864

In challenging the validity of a regulation, an interested person may pursue either he APA’s pre-adoption administrative remedy, post-adoption judicial remedy, or both. Coastside Fishing Club v. California Fish and Game Commission (2013) 215 Cal.App. 4th 397

            A regulation as defined under the APA and falling within the relevant two-pronged test is not valid if it does not adhere to APA requirements for adoption. To comply with the APA’s requirements for adoption of a regulation, an agency must give the public notice of its proposed regulatory action, issue a complete text of the proposed regulation with a statement of the reasons for it, give interested parties an opportunity to comment on the proposed regulation, respond in writing to public comments, and forward a file of all materials on which the agency relief in the regulatory process to the OAL. Any regulation that substantially fails to comply with these requirements may be judicially declared invalid.  Naturist Action Committee v. Department of Parks and Recreation (2009) 96 Cal.Rptr. 3rd 620; POET, LLC v. State Air Resources Board (2013) 218 Cal.App. 4th 681, review denied

            A regulation may be declared invalid if (1) the agency’s determination that the regulation is reasonably necessary to effectuate the purpose of the statute, court decision, or other provision of law that is being implemented, interpreted, or made specific by the regulation is not supported by substantial evidence or (2) the agency declaration pursuant to a statute governing notice of proposed adoption is in conflict with substantial evidence in the record. Rabuck v. Superior Court (2013) 221 Cal.App. 4th 1334, review denied

            An agency does not have discretion to promulgate regulations that are inconsistent with the governing statute, alter or amend the statute, or enlarge its scope. Where regulations are void because of inconsistency or conflict with the governing statute, a court has a duty to strike them down. California School Boards Association v. State Board of Education (2010) 191 Cal.App. 4th 530, review denied

In considering the vagueness challenge to an administrative regulation, courts do not view the regulation in the abstract, but rather consider whether it is vague when applied to the complaining party’s conduct in light of the specific facts of the particular case. If it can be given a reasonable and practical construction that is consistent with probably legislative intent and encompasses the conduct of the complaining party, the regulation is valid. While vagueness challenges to a statute arise most commonly in the criminal context, the prohibition again vagueness extends to administrative regulations as well. Teichert Construction v. California Occupational Safety and Health Appeals Board (2006) 140 Cal.App. 4th 883

It would be inappropriate for the court of appeal to invalidate a regulation based on lack of “clarity” under the APA since the issue is for the OAL rather than the court of appeal. The APA provision defining “clarity” does not provide a legal basis for courts to declare a regulation invalid for lack of such clarity. California Association of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 Cal.App. 4th 286

            Regarding the required economic analysis, a regulation is not necessarily invalid under the APA even if it has a significant adverse economic impact on business. California Association of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 Cal.App. 4th 286 In addition, under the APA, a regulation will not be invalidated simply because of disagreement over the strict accuracy of cost estimated on which the agency relied to support its initial determination. Western States Petroleum Association v. Board of Equalization (2013) 57 Cal. 4th 401

 

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