What is the power of an agency rule? The longstanding canard is that a rule has the force of law, just like a statute. So, for example, rules can alter the common law:

Where an agency has the authority to act, its rules and regulations have the binding effect of statutes and may accordingly alter the common law. Taylor v. Superior Motor Co., 227 N.C. 365, 367, 42 S.E.2d 460, 461 (1947) (noting that “proper regulations authorized under the Act have the binding effect of law,” because such regulations “are the tools used to effectuate the policy and purposes of the Act.”)

In re Declaratory Ruling by NC Comm’r of Insurance Regarding 11 N.C.A.C. 12.0319, 134 N.C. App. 22, 30 (1999).

Similarly, the view has long and generally been that agencies are bound by their own rules, since the rules are, essentially, just like statutes. See, e.g., Snow v. Board of Architecture, 273 N.C. 559 (1968); 2 Am. Jur.2d Administrative Law § 350 (1962) (“Procedural rules are binding upon the agency which enacts them as well as upon the public of the agency, and the agency does not, as a general rule, have the discretion to waive, suspend, or disregard in a particular case a validly adopted rule so long as such rule remains in force.”).

But here’s another conundrum about rules: they don’t always get treated with the same legal respect as statutes, despite what some court opinions say, and what the Administrative Procedures Act seems to imply about them.

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It’s impossible to grasp modern American environmental law without some understanding of administrative law–the law that limits and empowers governmental agencies (like U.S. EPA and N.C.’s Department of Environmental Quality). One of the primary ways that executive branch agencies carry out their work is through “rulemaking.” Rulemaking is the process for establishing rules (“regulations”) that have the force of law. Rules and regulations are at the center of many, if not most, of the current controversies over environmental law. So it’s important to understand how and why rules get made–what the “rules for rulemaking” are. The practicing environmental lawyer needs this understanding to advise clients every day, and the person interested in reform of environmental law and policy needs at least a general understanding of the rulemaking process in order to be effective.

So in this and a few followup posts, I will discuss some problems in the way that rules are authorized in North Carolina (and elsewhere, but my focus is on the Tarheel state).  I have structured this discussion as “canards, conundrums and conclusions” and I will present three canards, more than three conundrums and a few conclusions.

Canard: 1. a groundless rumor or belief. 2. (French) ‘duck,’ from Old French caner ‘to quack

My three canards–things that are widely believed to be true about the legislative authority for and power of rules–are these:

• Authority for rulemaking is rarely in question and easily found; more critical is whether there are “adequate guiding standards” for the particular rule that’s created
• Rules have the same legal power as statutes; for example, they bind the agency as well as persons outside the agency; they can change the common law; and they can’t be waived or disregarded by the agency that made them
• Rulemaking processes should be consistent from authorization to judicial review

These three propositions are not actually “groundless,” as the definition above implies, but they are taken almost as gospel by most administrative lawyers. In fact, when you scratch their surface just a little, the conundrums pop right up.

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Few people understand how complicated the regulation of stormwater has become. It just sounds wrong that something as natural as rain and its runoff would lead to a byzantine system of regulations that range across all levels of government and that differ from place to place. In North Carolina, coastal stormwater rules are just one chapter in the development of this system, and they came about only after two hundred years of environmental legal efforts to manage stormwater. But they were critical to the development of the State’s regulatory system. In part 1 of this chapter, I outlined the early responses of State government to the problem of shellfish closures caused by coastal pollution, leading up to the inescapable realization in the mid-1980s, in North Carolina as elsewhere in the United States, that runoff from developed, impervious surfaces was the primary cause of high bacterial counts in coastal water, and thus of the loss of shellfish that were safe for human consumption. The byzantine bureaucracy behind stormwater regulation is a response to and an indicator of the huge public administration challenge presented by diffuse (nonpoint) sources of pollution.

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