TO: Students in Spring 10 Administrative and Regulatory State Course FROM: Rachel Barkow RE: 2010 Exam By now

you should have received your grades for this class. I realize that some of you might be disappointed in your grade or are wondering what you could do to improve next year. Others may simply be curious to see some of the better answers to the exam questions. To that end, I am providing copies of some of the best answers for each question. The first two sets of answers show you how the same student addressed both question 1A and 1B. These particular answers did a nice job cross-referencing or otherwise provided a comprehensive treatment of the issues raised by the fact pattern that were asked in those two questions. After that, I have provided two stand-alone answers to 1A and two standalone answers to 1B from different exams. Finally, I have provided 3 answers to question 2. I grade the exams by question, so not all the answers come from the same exams. No exam spotted all the issues, but same came incredibly close. Overall, I was incredibly happy with the exams for your class. All of you including those of you who ended up at the lower end of the mandatory curve demonstrated knowledge of the subject matter. And most of you spotted the major issues in each question. The differences among exams came from the depth with which you analyzed them and the number of arguments you made for each side. For those of you disappointed in your performance in my class or your other 1L classes, I urge you not to give up hope. When Elena Kagan finished her first semester of law school, she received a B- in torts and a B in criminal law. (See the NY Times article about it here: http://www.nytimes.com/2010/05/25/us/politics/25kagan.html) She did not let those grades stifle her dreams. She tried harder and went on to graduate magna cum laude. She eventually became Dean of Harvard Law School, Solicitor General of the United States, and now a nominee to become the next Justice of the Supreme Court. I hope the moral of her story is clear: no single course grade or even a semesters or years worth of grades defines you or your future. You were a wonderful class, and I look forward to staying in touch over your next two years of law school. Have a wonderful summer!

NEW YORK UNIVERSITY SCHOOL OF LAW Final Examination Spring 2010 Cover Sheet Course Title: Course # and Section: Professor: Time Allowed: Materials Allowed: Administrative and Regulatory State L01.1001.005 Rachel Barkow 3.5 hours Any written materials.

Please indicate whether scrap paper may be used and retained, if students are limited to a specific number of pages and, if so, whether a page signifies one or both sides of the paper, and if students are to write on the examination question paper only. Any other specific instructions can be indicated here. 1. I have indicated the weight of each question (or subpart of each question) and suggested an approximate time allocation based on this weighting. 2. Write your student exam number, not your name, on your exam. Do not include any identifying information. 3. Read the questions carefully. Before answering the questions, take time to organize your thoughts. In addition to the depth of your analysis and your identification of the issues, I am interested in your ability to state your arguments clearly and succinctly -- and in an organized fashion. 4. Some of the questions discuss real-world agencies, organizations, and laws. In some cases, I have varied the provisions of the laws for this test and changed aspects of the agencies and organizations. You should answer the questions based on the information provided in this exam. 5. Do not assume facts not stated. If relevant information is missing, state your assumptions. Students must hand in BOTH the examination and the scrap paper used. Date of Examination: Time of Examination: May 7, 2010 1:30-5:00 pm

Signature: _________________________________

Question One (130 minutes, to be allocated between Parts A and B as described below) In 1946, Congress passed the Atomic Energy Act (Act) and created the Atomic Energy Commission (Commission) as the agency responsible for regulating the use of nuclear energy. The Act provides as follows: Sec. 1: Findings and Declaration of Policy Research and experimentation in the field of nuclear chain reaction have attained the stage at which the release of atomic energy on a large scale is practical. The effect of the use of atomic energy for civilian purposes upon the social, economic, and political structures of today cannot now be determined. It is a field in which unknown factors are involved. Therefore, any legislation will necessarily be subject to revision from time to time. Sec. 2: Atomic Energy Commission There is hereby established an Atomic Energy Commission which shall be composed of five members. The Members shall be appointed by the President, by and with the consent of the Senate. Each Member shall serve a term of five years except that the terms of office of the members first taking office after enactment of this Act shall expire, as designated by the President at the time of appointment, one at the end of three years, one at the end of four years, one at the end of five years, one at the end of six years, and one at the end of seven years. Any member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. Sec. 3: Joint Committee on Atomic Energy (a) There is hereby established a Joint Committee on Atomic Energy to be composed of nine Members of the Senate to be appointed by the President of the Senate, and nine Members of the House of Representatives, to be appointed by the Speaker of the House. In each instance not more than five members shall be members of the same political party. (b) The Joint Committee shall make continuing studies of the activities of the Commission. The Commission shall keep the Joint Committee fully and currently informed with respect to the Commissions activities. All bills, resolutions, and other matters in the Senate or House of Representatives relating primarily to the Commission or to the development, use, or control of atomic energy shall be referred to the Joint Committee. Sec. 4: Utilization of Atomic Energy License Requirement (a) It shall be unlawful for any person to manufacture, produce, or export any equipment or device utilizing atomic energy or to utilize atomic energy except in accordance with a license issued by the Commission authorizing such manufacture, production, export, or utilization after finding the license in accordance with the public interest, health, and safety. (b) No license for any manufacture, production, export, or use shall be issued under this section until after (1) a report with respect to such manufacture, production, export, or use

has been filed with the Congress; and (2) a period of ninety days in which the Congress was in session has elapsed after the report has been so filed. If a majority in both the Senate and the House of Representatives votes to disapprove the license within the ninety day period, it shall not issue. Sec. 5 (a): In any proceeding under this chapter for the granting, suspending, revoking, or amending of any license, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. (b): To be granted, a request for hearing under section 5(a) must make a prima facie case backed by evidence that granting the license would not provide reasonable assurance of adequate protection of the public health and safety. In the debate over the Act, the chief sponsor in the Senate, Senator Smithers, made clear that if the Commission were to grant a license in this very important field, the hearing should be of the highest quality to ensure that a full record justifies granting the license and to give Congress the opportunity to assess whether it agrees with the Commissions determination. Representative Quimby, the chief sponsor of the legislation in the House, expressed his view that individuals in harms way of a licensed nuclear facility should be given every opportunity to make their views heard through all the usual procedures. The House Committee Report on the bill stated that the Commission must be absolutely sure that granting a license will protect public safety. The legislation makes clear that this is not something the Commission will do casually. The process for getting a license requires careful consideration of all relevant facts in the record, and Congress stands ready to review that record. The Senate Committee Report emphasized the need for public safety and the expeditious development of nuclear energy. Senator Burns, who helped draft the Senate Committee Report, noted on the floor that the legislation struck just the right balance between safety and efficiency. Almost immediately after the Acts passage, the Commission began holding hearings under sections 554, 556 and 557 of the APA to determine if licenses should be granted. The Commission continued that practice until 1975 when a nuclear reactor in Springfield asked to have its license amended so that it could destroy its plant. Some residents of Springfield objected and asked the Commission to hold a hearing on the request. The Commission agreed to review written submissions by the residents and the reactor, but it did not hold a formal hearing. The Commission then granted the license amendment, and the Springfield reactor was shut down.

In the wake of that process, Congress in 1976 again took up the question of the licensing process to address what procedures the Commission should use when it considered requests by licensees to have their licenses amended to allow them to shut down and destroy their facilities. Senator Simpson sponsored legislation to address what he saw as the Commissions failure to see the importance of nuclear energy to communities. The authority to destroy a nuclear reactor, just like the authority to build one, requires the closest consideration. Senator Simpson cited a study commissioned by the Joint Committee in 1975 that noted that licensing and revoking the licensing of reactors is of far-reaching importance to many interests and therefore warrants formal public hearings. In light of that study, he proposed the following provisions to be added to the Act: Sec. 6 (a): In any proceeding under this Act for the granting or amending of any license to allow a license holder to demolish or destroy an existing reactor or significant part of the reactor, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. (b): To be granted, a request for hearing under section 6(a) must make a prima facie case that granting or amending the license would be contrary to the purposes of the Act. (c) The Commission has the authority to promulgate any rules and regulations as it deems necessary and appropriate for the efficient execution of its functions under this section. Senator Burns, who by then had become the Chair of the Joint Committee on Atomic Energy, disagreed with Senator Simpsons view that the procedures should be the same for granting licenses to operate and for licenses to destroy reactors. During the debate on the amendments, he noted that it was never the intention of the 1946 Congress to insist on the same laborious procedures for granting licenses to be used for getting rid of facilities as opposed to shifting their ownership to someone else. In all my years receiving reports on the Commissions licensing activities, Ive never seen a shred of evidence that a formal record is required to make the right call on whether to allow a company to shut down. Congress only needs a formal record to decide whether to override the agency when it grants an operating license or amends how a plant will operate. In response to Senator Burns, Senator Simpson said that Burns was worried for nothing because Simpsons proposal was faithful to the 1946 Congress and would balance efficiency with rationality. The amendments passed with overwhelming support, but Burns voted against them. Shortly after the amendments passed, Senator Burns then sent a letter on behalf of the Joint Committee to the Commission, urging it to pass a regulation making clear that the procedures for amending a license to allow for the destruction or demolition of a reactor would not be

unnecessarily formal. Congress made clear that the Commission could continue to proceed efficiently, and the Commission should take the opportunity to explain that it will. After an appropriate period of notice and comment, the Commission passed the following regulation: Reg. 601: A hearing for purposes of section 6 of the Atomic Energy Act shall consist of the following: (i) the party requesting the license or amendment shall file a written request stating the basis for the demolition or destruction of the reactor and providing any documentation necessary to support the request; (ii) within 60 days of the license request under (i), any party may file written objections to the proposed license or amendment, including any documentation supporting the objections; (iii) the party requesting the license or amendment shall be given an opportunity to respond to any objections raised under (ii) within 30 days of the filing of the objections. The Commission shall issue an opinion explaining its decision within 30 days after the final submission deadline in the case. Twenty years after issuing the regulation, in 1996, the Joint Committee held a congressional hearing on the subject of a backlog of license requests before the Commission and whether the Commission could adopt more streamlined procedures for section 5 license requests. The Chair of the Commission gave the following testimony: Although we appreciate the Joint Committees concern with our backlog, we cannot change our procedures and remain in compliance with the 1946 Atomic Energy Act and the APA. The Joint Committees 1975 study makes clear that formal public hearings are required under the Act for licenses to operate a plant, even if they are not required for the demolition or destruction of a reactor. It is also our expert judgment that a formal hearing is necessary to air all the relevant views and allow for proper oversight of our activities. Although these hearings can take years to complete, we believe they are worth the time because of the public safety benefits. It is now 2010. The Commissions backlog of license applications has tripled. The Commission also has a large backlog of investigations involving licenses that may need to be revoked. The Commission has six pending requests to amend licenses to allow reactors to be demolished. Part A (90 minutes, 43 percent) You are the general counsel to the Commission, and the Commission would like your legal advice. The Commission would like to use the process spelled out in Reg. 601 for all of its licensing decisions, including those brought under section 5 of the Act. The Commission has told you that it has been pleased with how things have worked under Regulation 601, and it believes that written submissions have given the interested parties all the process they need to raise the relevant issues for the Commission to perform its statutory functions. The Commission would like to know the strongest arguments it could use to adopt these

procedures for all license requests. The Commission would like you to anticipate any objections to such procedures and detail whether the Commission has effective responses to those objections if the case were reviewed by the judiciary. In answering the Commission, you should explain whether your analysis would vary depending on whether the Commission would announce its change of position through an interpretive rule or a rule issued after notice and comment. Part B (40 minutes, 19 percent) With respect to the six license amendment requests to permit demolition, the Commission recently received the following letter from the Joint Committee: We believe the Commission must scrutinize the requests for demolition permission with particular care, using formal procedures. In the absence of such procedures and a full record, Congress stands ready to use its authority under section 4(b) of the Act and override any license to demolish that was granted without first having a formal hearing. We urge the Commission to amend Regulation 601 to make clear that requests for license modifications to demolish or a destroy a reactor or a significant part of a reactor deserve the same careful process provided to license applications under section 5 of the Act. The Commission does not want to use formal procedures under section 6, despite the letter from the Joint Committee. But the Commission is concerned that Congress is going to override its decisions if it does not assemble a formal record. The Commission first wants to know whether it would have statutory authority to amend regulation 601 to require formal hearings. The Commission has also asked you if Congress can override its decisions granting license amendments to permit demolition if the Commission were to continue to use something less than formal procedures.

Question Two (80 minutes, 38 percent) The Boundary Wilderness Area is in area in northeast Minnesota that consists of more than a million acres of streams, lakes and forests. This area also includes three portages, which are land routes that are used to carry boats from one navigable body of water to another. The three portages are the Lexington Portage, the Madison Portage, and Park Portage. For many years, trucks and cars had been used to carry boats across the portages to take them from one lake to another. Representative Joan Holloway proposed legislation in the House that would have terminated all motorized portages in the area. Senator Don Draper was the sponsor of the legislation in the Senate. Draper pointed out that the area should be preserved consistent with the ability of individuals to enjoy canoeing as they have in the past. Drapers proposed legislation reads as follows:

Sec. 1: The purposes of this Act are hereby declared to be the prevention of further road and commercial development and the restoration of natural conditions to existing temporary roads in the wilderness. (a) For purposes of this Act, a wilderness, in contrast with those areas where man and his works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. Sec. 2: Nothing in this Act shall be deemed to require the termination of the existing operation of motor vehicles to assist the transport of boats across the Lexington Portage, Madison Portage, and Park Portage during the period ending December 31, 2003. On January 1, 2004, unless the Secretary of Agriculture determines there is no feasible nonmotorized means of transporting boats across the portages to reach the lakes previously served by the portages listed above, he shall terminate all such motorized use of each portage listed above. The version proposed by Draper was ultimately enacted into law in 2000. The Conference Committee report on the Act stated that this Act will do for the Boundary Wilderness Area what the Department of Transportation Act and Federal-Aid Highway Act did for the protection of parkland. Senator Peggy Olson from Minnesota spoke during the floor debate that took place after the conference and asked Senator Draper for assurances that the legislation would take into account the importance of this area for sports enthusiasts and fishermen of all kinds. Many small resorts have flourished surrounding these beautiful lakes. Im concerned that we protect these businesses and continue to allow the many retirees who come to the resorts to continue to enjoy this beautiful area. Senator Draper assured her that the Act would ensure that portage remained possible for able-bodied guests to enjoy the area. During the post-conference discussion in the House, Representative Holloway noted that I accept the Senates language because feasible non-motorized means already exist for taking boats across the Portages, so I fully expect the Secretary will terminate motorized use of these portages. The Secretary did not prohibit motorized use of any of the three portages on January 1, 2004. Instead, after a public hearing, she concluded that it was not feasible to use non-motorized portage wheels to cross the portages. She made this determination on the basis of a Forest Service test performed in 2003 in which three rangers (two men and one woman) were able to successfully cross Lexington Portage 80% of the time, Madison Portage 60%, and Park Portage 90% with a 16foot, 25 horsepower boat. The Secretary noted that that a physiological study determined that the test participants tested considerably above average for cardiovascular fitness and worked to near physical capacity in completing the portages. The physiologist who reviewed the tests stated that the manual portaging of these boats on portage wheels is a task that required high levels of sustained physical effort and in the case of Madison Portage, marathon-like endurance performance. The data

suggests that the level of effort and endurance required would not normally be achieved by people who are in normal physical condition. The Secretary also noted that the individuals in the test study had training on using the non-motorized wheels and took safety precautions that recreational users might not. Friends of Boundary Wilderness (Friends), an environmental group, submitted at the hearing a videotape showing three guests that they had selected at random from a resort (a 45-year-old man, 70-year-old man, and 25-year-old woman) crossing all three portages using wheels on the bottoms of one end of their 12-foot, 15-horsepower boat, wheelbarrow-style. The Friends argued that the tape demonstrated that portage without motorized assistance was physically possible for average resort-goers who received proper training from the Friends. The Friends also noted that 95% of those who use the lakes use boats that are smaller than the boat the Friends tested. The Secretary rejected this evidence for two reasons. First, she rejected the Friends argument that feasible means physically possible, regardless of the costs and health consequences to those carrying the boats. The Secretary cited a dictionary definition that noted that feasible can mean reasonably possible or practicable and she stated her view that this was the definition used in the Act. Second, the Secretary relied on the Forest Service study to support her decision that it was not reasonably possible for many if not most people to wheel a 16-foot, 25-horsepower boat plus gear across the portages. The Secretary observed that this size boat was the appropriate benchmark because state law allowed boats up to that size on the lakes adjacent to the portages. The Secretary noted that pulling a large boat on wheeled carriages without motorized assistance would be particularly hazardous to the health and safety of the elderly and individuals with smaller physiques. She rejected the Friends study because she said one-time success was not enough to show that nonmotorized portage was practicable and because that study used a smaller boat. She ruled that all three portages should remain open to motor vehicles. The Friends have challenged this determination, and the appeal is pending before Judge Roger Sterling. You are a clerk to Judge Sterling, and he has asked you to provide him with a detailed memo of the issues raised in this case, including both arguments and counterarguments. Because Judge Sterling may want to rest a judgment on alternative grounds, be sure to address each issue, even if you think that the agency should be reversed on one or more of these claims. Be sure to discuss the appropriate standard of review and to apply each standard carefully to the issues presented.

The End. Have a great summer.