Unwritten Administrative Law and the Regulatory Last Mile

Programs like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act are ostensibly federal. But once they change hands from national to subnational, they’re implemented through state statutes and regulations, not direct enforcement of the United States Code. As a result, state, not federal, administrative law governs in many bread-and-butter situations. Through a comprehensive fiftystate survey, I find that this body of law is largely unwritten. Yet cooperative federalism relies on the capacity of state institutions to function. And equally critical is the existence of law that shepherds a program from congressional subcommittee to the very ends—the last mile—of state implementation. Throughout the country, however, questions of when an agency can make policy through adjudication, what counts as guidance versus a rule, which standard governs the revocation of a rule as compared to initial promulgation, and what, if any, restrictions there are when an agency refuses to promulgate a rule, have often gone unanswered by state supreme courts and state legislatures. To compound matters, states rarely publish anything other than formal regulations. The consequence is that the last mile of cooperative federalism—the part that decides who receives a permit, when and if enforcement actions are taken, and where agencies make policy—is radically underspecified. In other words, because federal statutes are implemented through state law, federal law is unwritten, too. Untangling and identifying these patterns demonstrates that both the virtues of administration, such as notice and reason-giving, and the benefits of federalism, like participation and experimentation, are diminished when national programs are executed through undeveloped state law.