at least according to the holding in this case, because that was the chief ground on which the court based its refusal to enforce the rules. No, because the substances are already permitted by statute, which would take an act of Congress to change. On this point, the court said, “Although we have determined that non-psychoactive hemp is not banned under Schedule I, we need not determine in this proceeding whether under the current statute it could be listed if the agency were to undertake appropriate rulemaking. We hold only that the DEA did not follow the requisite proceedings for scheduling.” Some individuals or organizations prefer to sue an agency before it takes formal enforcement action. Why it this? Individuals or organizations may prefer to take the offensive to gain such advantages as the choice of forum. Also, waiting for an agency to act first can be expensive. A party faces the cost of the agency enforcement action, which includes litigation expenses (plus whatever sanction, in the case of a loss). The party may lose his or her investment in whatever the agency disallows (or requires). Essentially, taking the initiative avoids these costs (and the initial predicament of having to choose whether or not to conform with an agency’s rule). What sort of relief is sought in a preenforcement action for review? Declaratory relief. Unlike other areas of the law, in administrative law the courts are willing to save “a regulated entity [from] the dilemma of enduring costly compliance measures or risking civil and criminal penalties” [ CIBA-Geigy Corp. v. Environmental Protection Agency , 801 F.2d 430 (D.C. Cir. 1986)]. What about the “ripeness” requirement? The widely used test for ripeness was developed by the Supreme Court in Abbott Laboratories v. Gardner , 387 U.S. 136, 87 S.Ct. 1507, 98 L.Ed.2d 681 (1967). The two parts to the test are (1) the fitness of the issues for review and (2) the hardship to the parties of withholding review. Fitness factors include the nature of the issue and the finality of the agency’s position regarding it. The hardship requirement usually relates to costs that cannot be redressed by review at a later time. (Apart from ripeness, there are questions of jurisdiction, which Congress sometimes precludes by providing for review predicated on the completion of an agency enforcement action.) A NSWER TO “W HAT I F THE F ACTS W ERE D IFFERENT ?” IN C ASE 43.2 Suppose that the statutory definitions of THC and marijuana covered naturally occurring THC and non- psychoactive hemp. Would the result have been different? Explain. Yes. The agency based its failure to follow the required rulemaking procedures on the ground that the substances were already prohibited by statute, and the court based its ruling in part on the ground that the substances were not banned.
88 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW , ELEVENTH EDITION A NSWER TO “T HE E-C OMMERCE D IMENSION ”
- Fall '09
- Business Law, .........