Matthew J. Sanders explores the importance of procedure in the evolving environmental law landscape.
In a conversation with The Regulatory Review, Matthew J. Sanders, an expert in environmental law and policy, reflects on his career, comments on changes in the administrative law landscape, and highlights the importance of an often-overlooked doctrine in administrative law.
Sanders offers insights into current challenges facing administrative law and proposed reforms aimed at promoting clarity, consistency, and fairness in the field. Observing “shifting priorities and relationships with our environment” that have contributed to climate change, he calls on the federal government to modernize its regulatory approach and discusses potential paths forward. In doing so, Sanders emphasizes the need for dynamism and adaptability among regulators and in legal training.
After delving into the broader importance of procedural rules and doctrines in administrative law, Sanders calls attention to a “little-known but highly consequential” administrative-remand rule, which he argues looms as an “appellate gatekeeper” in cases that have been remanded from district courts to federal agencies. In practice, Sanders explains, the rule prevents non-agency parties from appealing a district court’s remand of an agency decision and, in turn, plays a pivotal role in the development of administrative law. He comments on the application of the administrative-remand rule, drawing from his scholarship and professional experience as a litigator.
Sanders’s legal scholarship touches on prominent issues in environmental law, administrative law, and clinical legal education. As co-director of Environmental Law Clinic at Stanford Law School, he leads students in representing non-profit organizations and Native American tribes in a wide range of cases, including cases involving environmental conservation, habitat preservation, pollution, and regulatory modification. Through his clinical work, he has contributed to numerous briefs in environmental law cases before both the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. Supreme Court. In his forthcoming article, Rethinking The Administrative-Remand Rule, Sanders critically analyzes a potentially problematic administrative law doctrine and advocates reform.
Sanders graduated from Stanford Law School in 2002 and joined the law school’s faculty in 2018. Before joining the faculty, Sanders spent five years with the Environment and Natural Resources Division of the U.S. Department of Justice as an appellate attorney, served as deputy county counsel for the County of San Mateo, California and clerked for Judge Consuelo M. Callahan of the U.S. Court of Appeals for the Ninth Circuit.
The Regulatory Review is pleased to share the following interview with Matthew J. Sanders.
The Regulatory Review: Before becoming a lawyer, you worked as a program analyst at the U.S. Environmental Protection Agency (EPA). How did that experience shape your perspective on how agencies operate? Did it influence your decision to pursue a legal career?
Sanders: I love this question because I’ve never been asked it before. My experience at EPA was formative. In college, I knew that whatever career I ended up choosing I wanted to spend most of it working in the public interest. I believed in the power of government to do good things, and I still do. Working at EPA —specifically in one of the Offices of Regional Counsel—I learned about the hard work that lawyers, scientists, policymakers, and others do every day to protect human health and the environment. Sure, I also saw a lot of bureaucracy and red tape, but I left that job more inspired to pursue a public interest career. As for becoming a lawyer, my experience at EPA showed me that environmental lawyers meld together law, policy, and science in their work, which was crosscutting in a way that really appealed to me.
TRR: You started your legal career as an appellate attorney in the Environment & Natural Resources Division of the U.S. Department of Justice and have now been working on environmental-law issues for nearly 25 years. Over the course of your career, have you observed any changes in the environmental-law landscape, including the issues that reach the courts?
Sanders: I’m not sure that anything stays the same, especially in environmental law. The issues we face are ever-changing—climate change, which is our biggest environmental issue today, wasn’t even on our minds 50 years ago. Part of this change comes from shifting priorities and relationships with our environment and each other, and part of it from our improving scientific understanding of the environment and how we benefit from, affect, and protect it. All this ensures dynamism and requires adaptability. On the other hand, some things that should change, including federal environmental laws—to better account for current issues and science—aren’t changing. EPA’s recent proposal to rescind its endangerment finding for greenhouse gases under the Clean Air Act is a good example. We need more than ever a modern Clean Air Act or some other law that explicitly recognizes greenhouse gases as pollutants and directs EPA to regulate them.
TRR: In your current role as co-director of the Environmental Law Clinic at Stanford Law School, you train law students to practice environmental, energy, and resources law. How have shifts in the environmental-law landscape and broader legal landscape influenced the way you instruct and train students today?
Sanders: The premise underlying this question is absolutely right: Educators, especially clinical educators like myself, must adapt our teaching to the changes we see in environmental law and the law more generally. Some of the changes are substantive; students must learn about new laws and regulations, precedents, and the like. Other changes in environmental law are procedural and conceptual. We are seeing significant shifts in the law around court access, the role of the administrative state, the relationship between the three branches of government, state versus federal action, and other areas that profoundly affect clients and thus what and how we teach our students. Some of the changes are more personal, including shifting norms in the profession around work-life balance and the increasing role of artificial intelligence in legal work. These types of changes require us to contemplate and adjust how we are preparing our students for practice.
TRR: How important are court procedural rules, doctrines, and principles in administrative law?
Sanders: Administrative agencies govern much of our lives. So the rules, doctrines, and principles that courts develop for dealing with administrative agencies really matter. That’s definitely true for environmental issues. I recently wrote an in Environmental Forum in which I asserted that “it would be only a slight overstatement to say that environmental law is administrative law.” That has been especially true for me, as I’ve spent most of my career seeking, defending, or challenging agency decisions. But administrative law, and administrative agencies, are foundational to many kinds of law, including education, transportation, health, and housing law, to name just a few. This is true even as the current presidential administration and U.S. Supreme Court work to curtail the powers and roles of the federal administrative state.
TRR: There have been so many notable developments in these areas in recent years—do any standout to you as especially important for environmental law?
Sanders: Yes. The Supreme Court’s growing embrace of the major questions doctrine—a legal principle that prevents federal agencies from claiming broad regulatory authority over issues of major economic or political significance without “clear” congressional authorization—is a problem, not only because the doctrine is unclear but also because so many environmental issues trigger questions of national political or economic significance and the U.S. Congress, for the most part, isn’t responding. The Court’s overturning of Chevron deference to agency interpretations of statutes creates challenges for environmental regulation, but it could be a double-edged sword for agency deregulation efforts; we’ll have to see. And the Court’s recent curbs on nationwide injunctions have so far spared administrative law cases, thanks to a single footnote about remand and vacatur—the nullification of agency action—under the federal Administrative Procedure Act (APA), but already there are rumblings to change that. As someone who generally believes in the power of government to do good—with appropriate checks and balances—and in the value to everyone of clear, transparent, and thoughtful procedures, I’m concerned about where we may be headed.
TRR: In your forthcoming article in the Stanford Law Review, you argue that the administrative-remand rule acts as an “appellate gatekeeper” in cases involving remands to federal agencies. What is the rule, and how does it function as a gatekeeper?
Sanders: The administrative-remand rule says that, when a district court remands an agency’s decision under the APA, only the agency may appeal the remand. Other parties, including plaintiffs and intervenors, must await the agency’s new decision following remand. In other words, the court’s remand is final for purposes of appeal only as to the agency. In this way, the rule strictly limits who may appeal a remand order and when.
TRR: You have engaged with the administrative-remand rule not just as a scholar but also in your work as a litigator. When did you first encounter the rule in practice? How did that experience shape your understanding of its broader implications?
Sanders: I based my forthcoming Stanford Law Review article, Rethinking the Administrative-Remand Rule, on a case I litigated when I was an appellate attorney at the Justice Department. In fact, I litigated the case against the very clinic in which I had been a student and now co-direct. I came across the rule when I was writing my brief, and I won the case based on it—the Ninth Circuit held that the plaintiffs could not appeal the district court’s remand because my agency client, the U.S. Forest Service, had decided not to appeal.
As I explain in the article, I was of course happy to win, but I had the unsettling feeling that perhaps I should not have. The administrative-remand rule makes sense in most cases—it makes courts more efficient, gives agencies space to revisit their decisions, and provides predictability. But the rule also leads to inefficiency and unfairness in more cases than I think is necessary or optimal, and the rule is annoyingly different across the circuits.
TRR: What reforms are needed to the administrative-remand rule? What role might Congress, the judiciary, or agencies play in shaping a more consistent, equitable approach?
Sanders: In my article, I propose modest reforms that I think would help standardize the rule and make it more fair. These include adopting a consistent rule across the circuits and modifying the rule to allow certain non-agency appeals to move forward. Congress could adopt these reforms by amending the APA, which is unlikely. The Supreme Court could adopt them under its authority to issue new procedural rules for federal courts. And district courts could at least do what they can to craft careful remands. Agencies can’t do much, if anything, to change the rule or how it’s implemented, especially at a time when they’re just trying to survive.
