COURT OF APPEALS STATE OF NEW YORK NEW YORK STATEWIDE COALITION OF HISPANIC CHAMBERS OF COMMERCE; THE NEW YORK KOREAN- AMERICAN GROCERS ASSOCIATION; SOFT DRINK AND BREWERY WORKERS UNION, LOCAL 812, INTERNATIONAL BROTHERHOOD OF TEAMSTERS; THE NATIONAL RESTAURANT ASSOCIATION; THE NATIONAL ASSOCIATION OF THEATRE OWNERS OF NEW YORK STATE; and THE AMERICAN BEVERAGE ASSOCIATION, Petitioners-Respondents, For a Judgment Pursuant to Articles 78 and 30 of the Civil Practice Law and Rules, - against - THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE; THE NEW YORK CITY BOARD OF HEALTH; and DR. THOMAS FARLEY, in his Official Capacity as Commissioner of the New York City Department of Health and Mental Hygiene, Respondents-Appellants. APL 2013-00291 BRIEF OF AMICI CURIAE PROFESSORS OF ADMINISTRATIVE LAW AND STATE AND LOCAL GOVERNMENT LAW GILLIAN E. METZGER RICHARD BRIFFAULT SARA HAVIVA MARK Center for Constitutional Governance Columbia Law School Counsel for Amici Curiae in Support of Respondents-Appellants 435 West 116th Street, New York, NY 10027 Tel: (212) 854-0064 Fax: (212) 854-7946 smark@law.columbia.edu April 22, 2014 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT.............................................................................. 1 ARGUMENT............................................................................................................ 4 I. Boreali v. Axelrod Establishes A Flexible And Pragmatic Approach That Allows Agency Regulation Under Broad Delegations Of Authority, And This Court Has Long Upheld Public Health Regulations Under Broad Delegations................................................................................................ 4 (A) This Court Has Flexibly Applied The Boreali Analysis And Upheld Agency Regulations Under Broad Delegations Of Authority......................................................................................... 5 (B) New York Courts Frequently Have Upheld Regulations Promulgated By Public Health Agencies Under Broad Delegations................................................................................... 11 1. The New York City Charter Grants The BOH Broad Authority, And New York Courts Repeatedly Have Held Such Broad Grants To Public Health Agencies To Be Constitutional................................................................ 11 2. Upholding Public Health Regulations Under These Broad Delegations Of Authority To Public Health Agencies Continues Post-Boreali.................................................. 13 II. The Portion Cap Rule Is A Constitutional Exercise Of The BOH’s Delegated Authority Under A Proper Boreali Analysis ........................ 15 (A) The Portion Cap Rule Plainly Falls Within The BOH’s Broad Authority And The BOH Did Not Promulgate The Rule On A “Clean Slate”………………………………………………......... 16 ii (B) The Portion Cap Rule Reflects Appropriate Attention To A Variety Of Regulatory Factors And The BOH’s Public Health Expertise………………………………………………………... 18 1. The BOH’s Consideration Of Social, Economic, And Jurisdictional Factors Was Appropriate And Consistent With Well-Established Norms Of Regulatory Design.. 19 2. The Portion Cap Rule Is The Product Of The BOH’s Expertise........................................................................ 25 (C) The Portion Cap Rule Did Not Improperly Intrude On Legislative Debate, And Legislative Inaction Should Be Given Little Weight In The Boreali Analysis................................................................ 27 III. The Portion Cap Rule Should Be Sustained Under A Nonconstitutional Approach That Focuses On Statutory Authorization And Reasoned Administrative Decisionmaking.............................................................. 30 (A) Under Federal Law, Broad Delegations Are Constitutional And Courts Check Administrative Decisionmaking Through Nonconstitutional Means.............................................................. 30 (B) The Portion Cap Rule Is Statutorily Authorized And Is Not Arbitrary Or Capricious................................................................ 34 iii TABLE OF AUTHORITIES Page CASES Boreali v. Axelrod, 71 N.Y.2d 1 (1987)....................................................................................... passim Bourquin v. Cuomo, 85 N.Y.2d 781 (1995)................................................................................... passim Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ............................................................................................ 31 Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 78 N.Y.2d 398 (1991)............................................................................................ 9 City of Arlington v. FCC, 133 S. Ct. 1863 (2013)......................................................................................... 37 Clark v. Cuomo, 66 N.Y.2d 185 (1985)........................................................................ 5, 6, 9, 10, 28 Concerned Home Care Providers, Inc. v. N.Y. State Dep’t of Health, 969 N.Y.S.2d 743 (Sup. Ct. 2013)....................................................................... 15 Cubas v. Martinez, 8 N.Y.3d 611 (2007).............................................................................................. 8 Dutchess/Putnam Rest. & Tavern Ass’n, Inc. v. Putnam City Dep’t of Health, 178 F. Supp. 2d 396 (S.D.N.Y. 2001).................................................................. 10 Ellicot Grp., LLC v. State of N.Y. Exec. Dep’t Office of Gen. Servs., 922 N.Y.S.2d 894 (App. Div. 2011)...................................................................... 9 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)............................................................................................. 32 iv Greater N.Y. Taxi Ass’n v. N.Y.C. Taxi and Limousine Comm’n, 972 N.Y.S.2d 513 (Sup. Ct. 2013)....................................................................... 10 Grossman v. Baumgartner, 17 N.Y.2d 345 (1966)........................................................................................... 12 Health Ins. Ass’n of America v. Corcoran, 551 N.Y.S.2d 615 (App. Div. 1990)...................................................................... 9 Justiana v. Niagara Cnty. Dep’t of Health, 45 F. Supp. 2d 236 (W.D.N.Y. 1999).................................................................. 10 J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928)............................................................................................. 31 Leonard v. Dutchess Cnty. Dep’t of Health, 105 F. Supp. 2d 258 (S.D.N.Y. 2000).................................................................. 10 Levine v. Whalen, 39 N.Y.2d 510 (1976)............................................................................................ 7 Mass. v. Envtl. Prot. Agency, 549 U.S. 497 (2007)............................................................................................. 21 Matter of Bologno v. O’Connell, 7 N.Y.2d 155 (1959).............................................................................................. 7 Matter of Campagna v. Shaffer, 73 N.Y.2d 237 (1989).................................................................................... 14, 33 Matter of Chemical Specialties Mfrs. Ass’n v. Jorling, 85 N.Y.2d 382 (1995)...................................................................................... 8, 35 Matter of Consolation Nursing Home v. Comm’r of N.Y. State Dep’t of Health, 85 N.Y.2d 326 (1995)……….............................................................................. 35 Matter of Jewish Home & Infirmary v. N.Y State Dep’t of Health, 84 N.Y.2d 252 (1994).......................................................................................... 33 Matter of Marlberg v. Cole, 286 N.Y. 202 (1941)............................................................................................ 35 v Matter of N.Y.C. C.L.A.S.H., Inc. v. N.Y. State Office of Parks, Recreation & Historic Pres., 975 N.Y.S.2d 593 (Sup. Ct. 2013)........................................................................ 10 Matter of N.Y. Pub. Interest Research Grp. v. N.Y. State Dep’t of Ins., 66 N.Y.2d 444 (1985)......................................................................................... 35 Matter of N.Y. State Health Facilities Ass’n v. Axelrod, 77 N.Y.2d 340 (1991).......................................................................... 7, 13, 14, 28 Matter of Nicholas v. Kahn, 47 N.Y.2d 24 (1979).......................................................................................... 7, 8 Matter of Richardson, 247 N.Y. 401 (1928).............................................................................................. 6 McKinney v. Comm’r of N.Y. State Dep’t of Health, 836 N.Y.S.2d 794 (Sup. Ct. 2007)....................................................................... 15 Medical Soc’y of the State of N.Y. v. Serio, 100 N.Y.2d 854 (2003).......................................................................... 7, 8, 28, 33 Mercy Hosp. of Watertown v. N.Y. State Dep’t of Soc. Servs., 79 N.Y.2d 197 (1992)............................................................................................ 8 Mistretta v. United States, 488 U.S. 361 (1989)............................................................................................. 30 Montalvo v. Consolidated Edison Co. of N.Y., Inc., 460 N.Y.S.2d 784 (App. Div. 1983) …………………………………………… 21 Montrose Parkway Alts. Coal. v. U.S. Army Corps of Eng’rs, 405 F. Supp. 2d 587 (S.D. Md. 2005)............................................................ 22, 37 Nassau Bowling Proprietors Ass’n v. Cnty. of Nassau, 965 F. Supp. 376 (E.D.N.Y. 1997)...................................................................... 10 National Broadcasting Co. v. United States, 319 U.S. 190 (1943)............................................................................................. 31 vi N.Y. State Ass’n of Counties v. Axelrod, 78 N.Y.2d 158 (1991).................................................................................... 35, 37 N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114 (2d Cir. 2009).......................................................................... 17, 26 Paduano v. City of New York, 257 N.Y.S.2d 531 (Sup. Ct. 1965), aff’d on op. below, 260 N.Y.S.2d 831 (App. Div. 1965), aff’d, 17 N.Y.2d 875 (1966)............................................................. 12 People ex rel. Knoblauch v. Warden of Jail of Fourth Dist. Magistrate's Court, 216 N.Y. 154 (1915)............................................................................................ 12 People v. Weil, 146 N.Y.S.2d 416 (App. Div. 1955).................................................................... 13 Rent Stabilization Ass’n of N.Y.C., Inc. v. Higgins, 83 N.Y.2d 156 (1993)........................................................................................... 8 Taylor v. Consolidated Edison Co. of N.Y., Inc., 552 F.2d 39 (2d Cir. 1977)……………………………………………………... 21 United States v. Price, 361 U.S. 304 (1960).............................................................................................. 9 Versailles Realty Co. v. N.Y. State Div. of Hous. & Cmty. Renewal, 76 N.Y.2d 325 (1990)............................................................................................ 9 Wetlands Action Network v. United States Army Corps of Eng'rs, 222 F.3d 1105 (9th Cir. 2000)............................................................................. 21 Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457 (2001)............................................................................................. 30 Williamson v. Lee Optical of Okla., 348 U.S. 483 (1955)............................................................................................ 21 Winnebago Tribe of Neb. v. Ray, 621 F.2d 269 (8th Cir. 1980)…........................................................................... 22 vii STATUTES AND LAWS 21 U.S.C. § 343(q)(5)............................................................................................. 26 N.Y.C. Charter § 551.............................................................................................. 25 N.Y.C. Charter § 553 ............................................................................................. 25 N.Y.C. Charter § 556.................................................................. 2, 11, 13, 14, 16, 34 N.Y.C. Charter § 556(c)(2)................................................................... 11, 17, 18, 34 N.Y.C. Charter § 556(c)(9)..................................................................................... 18 N.Y.C. Charter § 556(e)(4)............................................................................... 14, 18 N.Y.C. Charter § 558........................................................................................ 12, 13 N.Y.C. Charter § 558(b)............................................................................... 2, 13, 14 N.Y.C. Charter § 558(c).......................................................................................... 12 N.Y. Pub. Health Law § 2801-a(1)......................................................................... 14 N.Y. Pub. Health Law § 2801-a(2)......................................................................... 14 N.Y. Pub. Health Law § 2801-a(3)......................................................................... 14 N.Y. Soc. Serv. Law § 364(2)(a) ........................................................................... 14 RULES AND REGULATIONS 58 C.F.R. 51735 § 1................................................................................................ 20 76 C.F.R. 3821 § 1.................................................................................................. 20 76 C.F.R. 3821 § 1(b)............................................................................................. 22 105 Mass. Code. Regs. § 590.009(G) .................................................................... 26 King County, Wash., Bd. of Health Code § 5.10.016............................................ 26 King County, Wash., Bd. of Health Code § 5.10.035............................................ 27 viii N.Y. C.P.L.R. § 7803(3)................................................................................... 24, 35 R.C.N.Y. tit. 24, § 81.08 ........................................................................................ 27 R.C.N.Y. tit. 24, § 81.50 ........................................................................................ 26 R.C.N.Y. tit. 24, § 81.53 (proposed) ............................................................ 1, 16, 23 R.C.N.Y. tit. 24, § 81.53(a)(1) (proposed) ............................................................. 19 OTHER AUTHORITIES Paul A. Diller, Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of Woodrow Wilson, 40 Fordham Urb. L. J. 1859 (2013).......................................... 29 Cynthia Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452 (1989)............................................. 32 Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479 (1989).............................................................................. 31 Nat’l Conference of State Legislatures, Trans Fat and Menu Labeling Legislation, http://www.ncsl.org/research/health/trans-fat-and-menu-labeling- legislation.aspx....................................................................................................... 26 Nat’l Insts. of Health, Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults (1998)......................................... 17 N.Y.C. Dep’t of Health & Mental Hygiene Bd. Meeting Hr’g Tr., Sept. 13, 2012...................................................................................................... 18, 25, 36, 37 N.Y.C. Dep’t of Health & Mental Hygiene Bd. Meeting Hr’g Tr., June 12, 2012................................................................................................................... 18, 23 N.Y.C. Law Dep’t, Major New York City Charter Revisions Since 1897 (2013), available at http://www.nylslawreview.com/wordpress/wp- content/uploads/2013/02/Process-Powers-and-Lessons-for-the-Future.CLE- Materials.pdf............................................................................................................. 1 ix Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost- Benefit Analysis Can Better Protect the Environment and Our Health (2008)...................................................................................................................... 20 Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952 (2007)...................................................................................................................... 32 Leon Stafford, Soda Wars: Cities Seek Restrictions, Taxes to Curb Obesity, Atlanta Journal-Constitution, Nov. 12, 2012, http://www.ajc.com/news/news/local/soda- wars-cities-seek-restrictions-taxes-to-curb-o/nS4b2/............................................. 27 Cass R. Sunstein, The Cost-Benefit State: The Future of Regulatory Protection (2002)...................................................................................................................... 20 Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000)…......... 31 Tentative Determination Regarding Partially Hydrogenated Oils; Request for Comments and for Scientific Data and Information, 78 Fed. Reg. 67169 (Nov. 8, 2013)....................................................................................................................... 27 Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (2009)............................................................................... 22 Michael P. Vandenbergh, Amanda R. Carrico, & Lisa Schultz Bressman, Regulation in the Behavioral Era, 95 Minn. L. Rev. 715 (2011)........................... 22 World Health Org., Obesity: Preventing and Managing the Global Health Epidemic (2000), available at http://whqlibdoc.who.int/trs/WHO_TRS_894.pdf ................................................................................................................................. 17 x STATEMENT OF INTEREST OF THE AMICI CURIAE Amici are professors of law who teach and write about administrative law and state and local government law. They have substantial expertise and experience in these areas, including the regulatory powers of local administrative agencies. Specifically, amici can speak to the role of administrative agencies, relationships between the branches of government, and the state of modern regulation. Their legal expertise thus bears directly on the important administrative, constitutional, and governance issues before this Court in this appeal. Amici 1 are: • Gillian E. Metzger, Vice Dean and Stanley H. Fuld Professor of Law, Columbia Law School; Faculty Director, Center for Constitutional Governance 2 • Richard Briffault, Joseph P. Chamberlain Professor of Legislation, Columbia Law School • Nestor M. Davidson, Professor of Law, Fordham School of Law; Director, Fordham Urban Law Center • James A. Gardner, Bridget and Thomas Black Professor and SUNY Distinguished Professor, SUNY Buffalo Law School 1 Amici affirm that no counsel for a party authored this brief in whole or in part and that no person other than amici made a monetary contribution to its preparation or submission. 2 Sara Haviva Mark is the Executive Director and Post-Doctoral Fellow of the Center for Constitutional Governance at Columbia Law School. Ms. Mark is counsel for the amici. Professors Metzger and Briffault are counsel for the amici, and members of the amici. xi • Aaron Saiger, Professor of Law, Fordham School of Law • Patricia E. Salkin, Dean and Professor of Law, Touro College Jacob D. Fuchsberg Law Center • Peter L. Strauss, Betts Professor of Law, Columbia Law School • Olivier Sylvain, Associate Professor of Law, Fordham School of Law 3 3 Institutional affiliations are provided for identification purposes only. 1 PRELIMINARY STATEMENT New York constitutional and administrative law is grounded in a “long- standing and steadfast refusal to construe the separation of powers doctrine in a vacuum, instead viewing the doctrine from a commonsense perspective.” Bourquin v. Cuomo, 85 N.Y.2d 781, 785 (1995). Guided by this principle, this Court has applied its seminal delegation precedent - Boreali v. Axelrod, 71 N.Y.2d 1 (1987) - in a flexible and pragmatic manner, in the process upholding myriad agency regulations as constitutional exercises of delegated authority. As developed by this Court, the Boreali analysis is appropriately sensitive to the inherent complexity of government regulation and the need for administrative flexibility. In the decision below, however, the Appellate Division erroneously departed from this well-established precedent and applied the Boreali analysis in an excessively narrow and restrictive fashion to strike down the “Portion Cap Rule,” an amendment to Article 81 of the New York City Health Code promulgated by the New York City Department of Health and Mental Hygiene, Board of Health (BOH). 4 R.C.N.Y. tit. 24, § 81.53 (proposed). The Appellate Division’s decision 4 For the purposes of this brief, we use the Board of Health (BOH), Department of Health (DOH), and Department of Health and Mental Hygiene (DOHMH) interchangeably. The DOH is the predecessor of the DOHMH, which combined the Department of Health and the Department of Mental Hygiene in 2001. N.Y.C. Law Dep’t, Major New York City Charter Revisions Since 1897 1 (2013), available at http://www.nylslawreview.com/wordpress/wp- content/uploads/2013/02/Process-Powers-and-Lessons-for-the-Future.CLE-Materials.pdf. The 2 unduly constricts the BOH’s authority and sets a dangerous precedent with potential to undermine the regulatory powers of many New York administrative agencies. Although the Appellate Division’s decision is an extreme misreading of Boreali, at times other lower New York courts also have applied Boreali inconsistently with the pragmatic and flexible approach this Court has pursued. As a result, amici believe the Court should take this opportunity not simply to reverse the erroneous invalidation of the Portion Cap Rule, but further to clarify the appropriate contours of the Boreali analysis. Boreali does not and should not represent the straightjacket on regulation that the Appellate Division erroneously read it to be. Instead, as this Court should emphasize, Boreali provides a flexible and pragmatic approach to delegation intended to accommodate the complexities and changing realities of modern administrative government. Under a proper application of Boreali, the Portion Cap Rule is plainly constitutional. The New York City Charter grants the BOH broad authority to address “all matters affecting health in the city of New York” through the New York City Health Code and to add “provisions for security of life and health in the city.” N.Y.C. Charter §§ 556, 558(b). This Court has repeatedly sustained similar grants of authority to state and city public health bodies both before and after BOH is the governing body of DOHMH (and formerly of DOH), and so lawsuits challenging BOH-adopted rules often name DOHMH (or DOH) as a defendant as well. 3 Boreali, rejecting efforts to require detailed legislative articulation of specific health policies. By contrast, the Appellate Division mistakenly imposed its own limit on the Charter’s broad grant to the BOH - restricting it to regulating only “inherently harmful and inimical matters” - and then compounded its error by determining that a regulation addressing sugary drinks, a central contributor to the growing public health crisis of obesity, is not a “matter[] affecting health” within the BOH’s authority. Just as troubling, the Appellate Division faulted the BOH for promulgating a nuanced rule that takes a variety of appropriate regulatory concerns into account, suggesting that only extreme measures that pay no heed to the costs and benefits of regulation can satisfy Boreali. In so doing, the lower court created an unnecessary and deeply problematic conflict between Boreali and principles of sound administrative governance. The Appellate Division further erred in concluding that the Portion Cap Rule was not based on the agency’s public health expertise, and at odds with legislative policy preference. Finally, the Portion Cap Rule should also be sustained under a nonconstitutional analysis that focuses on whether an agency wielded its powers consistent with governing statutes or in a reasonable manner. Such an analysis bears close similarities to New York’s traditional arbitrary and capricious review and to Boreali itself, and is the approach that federal courts use to police broad delegation to federal agencies. Its advantage lies in putting prime emphasis on 4 monitoring delegated authority rather than attempting to identify instances in which administrative actions exceed difficult-to-define constitutional bounds on delegation. Amici urge this Court to expressly adopt a similar nonconstitutional approach as the focus of the Boreali analysis. ARGUMENT I. Boreali v. Axelrod Establishes A Flexible And Pragmatic Approach That Allows Agency Regulation Under Broad Delegations Of Authority, And This Court Has Long Upheld Public Health Regulations Under Broad Delegations. The seminal New York case on delegation, Boreali v. Axelrod, provides the framework for the separation of powers analysis here. 5 71 N.Y.2d 1. Although Boreali struck down a Public Health Council (PHC) regulation prohibiting smoking in certain public areas as unconstitutional agency lawmaking, subsequent decisions demonstrate that Boreali allows for agency regulation under broad delegations of administrative authority. In applying Boreali, this Court has emphasized “the necessity of some overlap among the three separate branches of government, as well as the great flexibility to be accorded the Governor in determining the methods of enforcing legislative policy.” Bourquin, 85 N.Y.2d at 5 The Appellate Division decision applies state separation of powers doctrine to the case at hand, and our analysis proceeds under this framework. However, we recognize that separation of powers principles may apply differently at the local level, a position we understand is being advanced by other amici to this litigation. 5 785 (quoting Clark v. Cuomo, 66 N.Y.2d 185, 189 (1985)) (internal quotations omitted). (A) This Court Has Flexibly Applied The Boreali Analysis And Upheld Agency Regulations Under Broad Delegations Of Authority. In Boreali, this Court highlighted the “difficult-to-define line between administrative rulemaking and legislative policymaking.” 71 N.Y.2d at 11. The Court found that “the broad enabling statute in issue [was not] . . . itself an unconstitutional delegation of legislative authority[,]” but nonetheless invalidated the contested PHC regulation, holding that it had “stretched that statute beyond its constitutionally valid reach.” Id. at 9. In so ruling, the Court emphasized four “coalescing circumstances,” none of which standing alone would suffice to justify invalidation. Id. at 11. Now referred to as the Boreali factors, these were that: (1) the PHC impermissibly carved out exceptions based “solely” on economic and social considerations; (2) the PHC “wrote on a clean slate, creating its own comprehensive set of rules without the benefit of legislative guidance”; (3) “the Legislature had repeatedly tried - and failed - to reach agreement” on how to regulate smoking in public places, with forty bills introduced and none being passed by both houses; and (4) no special expertise in the field of health was necessary to develop the regulations. Id. at 12-14. 6 In subsequent decisions, this Court applied the Boreali analysis in a flexible manner attuned to the inherently complex nature of government regulation. A prime example is the much-cited decision in Bourquin, 85 N.Y.2d 781. There, the Court held that an executive order establishing the Citizens’ Utility Board to represent the interests of utility customers in proceedings before the Public Service Commission did not violate the State’s separation of powers doctrine. Id. at 788. Recognizing that “this Court has always understood that the duties and powers of the legislative and executive branches cannot be neatly divided into isolated pockets,” id. at 784, Bourquin held that the executive order did not improperly usurp legislative authority. Summarizing prior jurisprudence, the Court emphasized “its longstanding and steadfast refusal to construe the separation of powers doctrine in a vacuum,” insisting instead on “a commonsense perspective” that recognizes “‘the exigencies of government.’” Id. at 785 (quoting Matter of Richardson, 247 N.Y. 401, 410 (1928)). Moreover, following earlier decisions, Bourquin expressly approved the Legislature’s decision to vest an agency “with the power to promote a broad, even ‘general’ legislative purpose.” Id. at 786 (analogizing to Clark, 66 N.Y.2d 185 (upholding executive creation of a Voter Registration Task Force against a separation of powers challenge)). The Court rejected the view that there need be “a specific and detailed legislative expression authorizing a particular executive act 7 as long as the basic policy decisions underlying the regulations have been made and articulated by the Legislature.” Id. at 785-86 (quoting Matter of N.Y. State Health Facilities Ass’n v. Axelrod, 77 N.Y.2d 340, 348 (1991)) (internal quotations omitted). Indeed, acceptance of general agency delegations and refusal to require legislative articulation of specific administrative policies are a hallmark of this Court’s separation of powers jurisprudence. See Health Facilities Ass’n, 77 N.Y.2d at 348; Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979) (“[I]t is not necessary that the Legislature supply administrative officials with rigid formulas in areas where there are infinitely variable conditions thereby necessitating flexibility.”); Levine v. Whalen, 39 N.Y.2d 510, 516 (1976) (“It is not always necessary that . . . legislation prescribe a specific rule of action and, where it is difficult or impractical for the Legislature to lay down a definite and comprehensive rule, a reasonable amount of discretion may be delegated to the administrative official.”) (citing Matter of Bologno v. O’Connell, 7 N.Y.2d 155, 159 (1959)). More recently, in Medical Soc’y of the State of N.Y. v. Serio, 100 N.Y.2d 854 (2003), this Court again approved agency action pursuant to broad delegation in sustaining regulations issued by the Superintendent of Insurance that reduced the time period for filing no-fault insurance claims. In holding that the regulations did not exceed the scope of the Superintendent’s constitutional authority despite their 8 far-reaching effects, the Serio Court emphasized that “the absence of a specific statutory delegation of authority to establish time frames does not bar the challenged regulations.” Id. at 866. To the contrary, “‘[t]he cornerstone of administrative law is . . . the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation.’” Id. at 865 (quoting Matter of Nicholas v. Kahn, 47 N.Y. 2d at 31). Bourquin and Serio demonstrate this Court’s consistently flexible and pragmatic application of Boreali. See, e.g., Cubas v. Martinez, 8 N.Y.3d 611, 619 (2007) (regulations requiring proof of ineligibility for a social security number upheld under Boreali as within the agency’s “broad” authority); Matter of Chemical Specialties Mfrs. Ass’n v. Jorling, 85 N.Y.2d 382 (1995) (regulations promulgated by the Commissioner of Environmental Conservation prohibiting the sale of DEET held to be within the agency’s constitutional authority under Boreali); Rent Stabilization Ass’n of N.Y.C., Inc. v. Higgins, 83 N.Y.2d 156 (1993) (concluding that the Division of Housing and Community Renewal had the authority under Boreali to adopt regulations expanding family succession rules for rent-regulated housing); Mercy Hosp. of Watertown v. N.Y. State Dep’t of Soc. Servs., 79 N.Y.2d 197, 207 (1992) (holding, under Boreali, that the authority for 9 DSS to conduct Medicaid audits based upon statistical sampling is “implicit in the general grant of authority to supervise the administration of the Medicaid program”); Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 78 N.Y.2d 398, 412 (1991) (finding the Long Island Power Authority’s decision to close a nuclear power facility constitutional under Boreali in light of the “broad discretion” delegated to it); Versailles Realty Co. v. N.Y. State Div. of Hous. & Cmty. Renewal, 76 N.Y.2d 325, 328-29 (1990) (concluding that DHCR’s regulations prohibiting rent increases for major capital improvements fall “plainly within the scope of the agency’s mandate [to] . . . ‘protect[] tenants and the public interest’” under a Boreali analysis). To be sure, some lower courts have misread Boreali and failed to appropriately employ the flexible and pragmatic approach this Court requires. For example, in Ellicot Group, LLC v. State of N.Y. Executive Dep’t Office of Gen. Servs., the Fourth Department struck down a regulation requiring that prevailing wage be paid for work on private property leased by the agency solely under Boreali’s “legislative inaction” factor, 922 N.Y.S.2d 894, 898 (App. Div. 2011), despite this Court’s statement that “[l]egislative inaction, because of its inherent ambiguity, ‘affords the most dubious foundation for drawing positive inferences.’” Clark, 66 N.Y.2d at 190-91 (quoting United States v. Price, 361 U.S. 304, 310-11 (1960)). See also Health Ins. Ass’n of Am. v. Corcoran, 551 N.Y.S.2d 615, 621 10 (App. Div. 1990) (invalidating regulation which banned insurers from considering HIV test results in determining an applicant’s insurability as broad policymaking without considering the Court’s acceptance of general delegations in Clark or the other Boreali factors). 6 Indeed, one of the worrisome effects of the Appellate Division decision below is that it has encouraged some lower courts to read Boreali in an inappropriately restrictive fashion. See, e.g., Matter of N.Y.C. C.L.A.S.H., Inc. v. N.Y. State Office of Parks, Recreation & Historic Pres., 975 N.Y.S.2d 593 (Sup. Ct. 2013); Greater N.Y. Taxi Ass’n v. N.Y.C. Taxi and Limousine Comm’n, 972 N.Y.S.2d 513 (Sup. Ct. 2013). It is therefore essential that this Court clarify that Boreali does not represent the straightjacket on contemporary administrative government that the Appellate Division erroneously read it to be, and instead confirm that the Boreali factors should be applied - as this Court has applied them - with attention to the need for expert agencies to be able to flexibly address ever-changing health and safety concerns. 6 In addition, some federal district courts in New York have struck down regulations prohibiting smoking under Boreali, but these decisions involved exactly the same subject matter and type of regulation at issue in Boreali itself and thus not surprisingly were found to be indistinguishable. See Dutchess/Putnam Rest. & Tavern Ass’n, Inc. v. Putnam City Dep’t of Health, 178 F. Supp. 2d 396, 401 (S.D.N.Y. 2001); Leonard v. Dutchess Cnty. Dep’t of Health, 105 F. Supp. 2d 258, 265-66 (S.D.N.Y. 2000); Justiana v. Niagara City Dep’t of Health, 45 F. Supp. 2d 236, 245 (W.D.N.Y. 1999); Nassau Bowling Proprietors Ass’n v. Cnty. of Nassau, 965 F. Supp. 376, 380 (E.D.N.Y. 1997). 11 (B) New York Courts Frequently Have Upheld Regulations Promulgated By Public Health Agencies Under Broad Delegations. A flexible and pragmatic approach to delegation is particularly evident with respect to delegations to public health agencies, and appropriately so. Both this Court and lower New York courts repeatedly have upheld the constitutionality of broad delegations to state and city public health agencies and the regulations promulgated pursuant to such delegations. This acceptance of broad public health delegations reflects the need to take into account the changing threats to public health that agencies like the BOH are charged with addressing. 1. The New York City Charter Grants The BOH Broad Authority, And New York Courts Repeatedly Have Held Such Broad Grants To Public Health Agencies To Be Constitutional. The New York City Charter provides the BOH, and the DOHMH of which it is part, broad authority to regulate public health matters in the city. Section 556 grants the DOHMH the “jurisdiction to regulate all matters affecting health in the city of New York and to perform all those functions and operations performed by the city that relate to the health of the people of the city.” This includes authority to “supervise the reporting and control of communicable and chronic diseases and conditions hazardous to life and health.” N.Y.C. Charter § 556(c)(2) (emphasis added). In turn, section 558 of the Charter charges BOH with power to alter, amend, repeal, or add to the Health Code and “embrace all matters and subjects to 12 which the power and authority of the department extends.” Id. at § 558(b)-(c); see also id. at § 558(b) (BOH “may . . . publish additional provisions for security of life and health in the city and confer additional powers on [DOHMH] not inconsistent with the constitution, laws of this state or this charter.”). New York courts have consistently found these broad statutory delegations provide the BOH with great authority to address threats to the public health. As Respondents-Appellants correctly state, historically “this and other courts [have] recognize[d] the extraordinary authority of the [BOH] to issue substantive rules and standards in public health . . . ”. Appellant Br. 24-25; see also People ex rel. Knoblauch v. Warden of Jail of Fourth Dist. Magistrate's Court, 216 N.Y. 154, 160 (1915) (upholding BOH rule regulating dog-walking under various Charter provisions, including control over buildings, the streets, and “the general power to preserve the public health and safety”); Grossman v. Baumgartner, 17 N.Y.2d 345, 351 (1966) (relying on N.Y.C. Charter § 558, authorizing the Board “to add to and to alter, amend or repeal any part of the health code,” to uphold a provision regulating tattooing practices); Paduano v. City of N. Y., 257 N.Y.S.2d 531, 542 (Sup. Ct. 1965), aff’d on op. below, 260 N.Y.S.2d 831 (App. Div. 1965), aff’d, 17 N.Y.2d 875 (1966) (upholding a regulation mandating the fluoridation of the city water supply under the broad authority delegated to the BOH by N.Y.C. Charter § 556 “to regulate all matters affecting health in the city” and § 558(b) “to add to, 13 alter, or amend any part of the Health Code and to publish additional provisions for the security of life and health in the city”); People v. Weil, 146 N.Y.S.2d 416, 419 (App. Div. 1955) (citing N.Y.C. Charter § 558 for the proposition: “The Board of Health of the City of New York is invested with the power, extraordinary as to administrative agencies, to formulate standards as well as to issue orders enforceable by penal sanctions” and upholding a BOH regulation requiring that owners and landlords maintain gas appliances and imposing criminal sanctions on violators). 2. Upholding Public Health Regulations Under These Broad Delegations Of Authority To Public Health Agencies Continues Post-Boreali. This longstanding recognition of New York health agencies’ comprehensive regulatory powers has continued through this Court’s modern post-Boreali jurisprudence, as Health Facilities Association v. Axelrod demonstrates. In Health Facilities Association, this Court relied on the New York State Department of Health’s broad enabling statute to uphold regulations adopted by the PHC which required facilities seeking approval as nursing homes to admit 75% of the annual rate of nursing home admissions of Medicaid patients in the county where the facility was located. 77 N.Y.2d 340 (1991). The Court reasoned, “[w]here an agency has been endowed with broad power to regulate in the public interest, we have not hesitated to uphold reasonable acts on its part designed to further the 14 regulatory scheme,” though it “may adopt only rules and regulations which are in harmony with the statutory responsibilities it has been given to administer.” Id. at 346 (quoting Matter of Campagna v. Shaffer, 73 N.Y.2d 237, 242-43 (1989)). Citing the “broad” legislative authorization given to the PHC - instructing it to consider “public need,” including the “medical needs of all members of the public,” in deciding whether to approve a nursing home - the Court upheld the regulations. Id. at 346-47 (citing N.Y. Pub. Health Law § 2801-a(1)-(3) (McKinney 2011)); see also N.Y. Social Servs. Law § 364(2)(a) (McKinney 1966) (granting DOH the authority to establish and maintain standards for nursing homes). The delegation found sufficient to authorize the PHC regulations in Health Facilities Association is strikingly similar to the statutory language here - granting BOH the authority to “regulate all matters affecting the health in the city of New York,” and perform acts “as may be necessary and proper to carry out the provisions” of the chapter. N.Y.C. Charter § 556, 556(e)(4). New York’s lower courts have followed this lead, upholding public health regulations on the grounds of broad delegation and sufficient legislative guidance. Relying heavily on the precedents of Bourquin and Health Facilities Association, these courts cite to the broad enabling statutes and the inherent complexities of a health care system and hold that the contested regulations were not promulgated on a “clean slate,” but instead were authorized by the underlying legislative goal of 15 promoting public health. Concerned Home Care Providers, Inc. v. N.Y. State Dep’t of Health, 969 N.Y.S.2d 743, 745-46 (Sup. Ct. 2013) (upholding regulations limiting state funds to pay for administrative expenses and executive compensation under the authority delegated by Public Health Law § 201(1)(o)-(p), to “regulate the financial assistance granted by the state in connection with all public health activities” and “receive and expend funds made available for public health purposes pursuant to law.”); McKinney v. Comm’r of N.Y. State Dep’t of Health, 836 N.Y.S.2d 794, 805-06 (Sup. Ct. 2007) (finding the “general guidelines” to the commission sufficient to authorize the constitutionality of their recommendations, and “according [them] great flexibility.”). II. The Portion Cap Rule Is A Constitutional Exercise Of The BOH’s Delegated Authority Under A Proper Boreali Analysis. Under a proper Boreali analysis, the Portion Cap Rule is plainly constitutional. In reaching the contrary conclusion, the Appellate Division mistakenly applied a rigid and formalistic analysis, instead of this Court’s flexible and pragmatic approach. The Appellate Division’s ruling conflicts with New York precedent repeatedly upholding broad public health delegations and the BOH’s regulations. As troubling, the Appellate Division’s analysis is fundamentally at odds with principles of sound administrative governance and poses a dangerous threat to the ability of New York’s administrative agencies to protect public health and safety. 16 (A) The Portion Cap Rule Plainly Falls Within The BOH’s Broad Authority And The BOH Did Not Promulgate The Rule On A “Clean Slate.” The Portion Cap Rule plainly falls within the scope of the BOH’s broad authority. The Rule targets sugary drinks, a major contributor to the city’s growing obesity epidemic. R.C.N.Y. tit. 24, § 81.53 (proposed) (“Background of the Amendment: Sugary drinks are a leading driver of the obesity epidemic and are associated with dangerous chronic diseases”). Not only is obesity a clear public health concern, as the Appellate Division itself acknowledged, Op. at 27-28, it is also a “condition hazardous to life and health,” one of the BOH’s specific areas of regulatory authority. N.Y.C. Charter § 556(c)(2). Instead of writing on a “clean slate . . . without benefit of legislative guidance,” Boreali, 71 N.Y.2d at 12, the BOH was acting to implement the Charter’s mandate. Although the Appellate Division read the Charter to restrict BOH regulation to “inherently harmful and inimical matters,” Op. at 24-25, the Charter’s grant of power to the BOH is far broader than that. See N.Y.C. Charter § 556 (granting the BOH power to regulate through the Health Code “all matters affecting health in the city of New York”) (emphasis added). Indeed, the BOH’s express power to “exercise control over and supervise the abatement of nuisances affecting or likely to affect the public health,” id. at § 556(c)(2) (emphasis added), confirms that the Appellate Division erred in 17 cabining BOH’s authority to regulating only “inherently harmful and inimical matters.” Moreover, the Portion Cap Rule would fall within the BOH’s authority even under the Appellate Division’s unduly restrictive view of the agency’s powers. Obesity surely is “inherently harmful and inimical” to public health. Leading public health organizations treat obesity as a disease, and extensive evidence establishes that obesity constitutes a health epidemic and is a contributing factor for diabetes, stroke, cancer and heart disease. See, e.g., World Health Org., Obesity: Preventing and Managing the Global Health Epidemic 1 (2000), available at http://whqlibdoc.who.int/trs/WHO_TRS_894.pdf?ua=1 (“Obesity is a chronic disease, prevalent in both developed and developing countries, and affecting children as well as adults.”); Nat’l Inst. of Health, Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults xi (1998), available at www.nhlbi.nih.gov/guidelines/obesity/ob_gdlns.pdf (“Obesity is a complex multifactorial chronic disease that develops from an interaction of genotype and the environment.”). See also N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114, 134-35 (2d Cir. 2009) (finding a reasonable relationship between a regulation requiring certain restaurants to post calorie content information and the stated goal of the regulation to fight obesity based on evidence that “obesity is epidemic and is a serious and increasing cause of 18 disease.”); N.Y.C. Dep’t of Health & Mental Hygiene Bd. Meeting Hr’g Tr. 27, Sept. 13, 2012 (Dr. Kansagra) (“There are over 5,000 deaths in New York City from being overweight and obese, and that is the second leading cause of premature preventable death, second only to tobacco.”). Given that obesity is indeed “inherently harmful and inimical” to public health, the BOH must have authority to regulate conditions that contribute to its development, such as excess consumption of sugary drinks. See N.Y.C. Charter § 556(c)(2) (authorization to “supervise the reporting and control of … chronic diseases and conditions hazardous to life and health”), (c)(9) (authorization to “supervise and regulate the food … supply of the city”), (e)(4) (authorization to “perform such other acts as may be necessary and proper to carry out the provisions of this chapter”); see also N.Y.C. Dep’t of Health & Mental Hygiene Bd. Meeting Hr’g Tr. 28 June 12, 2012 (Dr. Kansagra) (“The single largest cause of increased calories is sugary drinks.”). (B) The Portion Cap Rule Reflects Appropriate Attention To A Variety Of Regulatory Factors And The BOH’s Public Health Expertise. In promulgating the Portion Cap Rule, the BOH eschewed an across-the- board draconian ban on all sugary beverages in favor of a more modulated approach. The BOH sought to discourage excess consumption by capping drink sizes rather than prohibiting sales altogether. It targeted high-sugar drinks but exempted drinks that had some health benefit, such as drinks with significant milk 19 content, as well as alcoholic beverages. R.C.N.Y. tit. 24, § 81.53(a)(1) (proposed). It also limited the Rule to food service establishments that came within the DOHMH’s inspection jurisdiction. See Record on Appeal, 607-15. The BOH’s targeted approach reflected the agency’s expert judgment concerning the best way to advance public health concerns, in a manner consistent with its jurisdiction. Yet instead of viewing the BOH’s approach as an appropriate exercise of administrative restraint, the Appellate Division denounced it as a “compromise measure” that took factors other than public health into account. Op. at 21. But it is the Appellate Division that erred in failing to recognize the important relationship between personal consumption and public health, an error which is at odds with well-established norms of good regulatory design and public health practice. The Appellate Division’s one-dimensional approach to public health regulation creates a serious obstacle to the creation of sensible and effective regulatory regimes in New York. By contrast, an appropriately flexible and pragmatic application of Boreali allows agencies to wield their expertise in an effective and tailored fashion. 1. The BOH’s Consideration Of Social, Economic, And Jurisdictional Factors Was Appropriate And Consistent With Well-Established Norms Of Regulatory Design. The Appellate Division’s stance will lead to inefficient and unnecessarily burdensome regulation. The best regulation entails analysis of the costs as well as 20 the benefits of a rule, tailoring the rule to get the “biggest bang for the buck” - that is, implementing changes that are likely to generate the greatest health improvement at the least cost - and taking individual behavior and likely responses to a rule into account in determining what rule is likely to be the most effective. Federal administrative law is particularly instructive here, with cost- benefit analysis long constituting a prominent feature of the federal regulatory process. See Exec. Order No. 13,563, 76 C.F.R. 3821 §1 (2011) (instructing agencies to “propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs,” “tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives,” and “select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits”); Exec. Order No. 12,866, 58 C.F.R. 51735 §1 (1993) (“In deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives” and “design . . . regulations in the most cost- effective manner to achieve the regulatory objective”); Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health 2 (2008) (“Regulators must master the physiological, economic, engineering, ecological, and social consequences of regulations in order to make good decisions.”); Cass R. Sunstein, The Cost-Benefit State: The Future of Regulatory Protection 20-22 (2002) (“[A]n agency should be 21 required to conclude, in ordinary circumstances, that the benefits justify the costs, and to explain why.”). Both New York and federal courts have also repeatedly sustained agency choices to regulate in an incremental fashion. See, e.g., Mass. v. Envtl. Prot. Agency, 549 U.S. 497, 524 (2007) (citing Williamson v. Lee Optical of Okla., 348 U.S. 483, 489 (1955)) (“Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more nuanced understanding of how best to proceed.”) (internal citations omitted); Montalvo v. Consolidated Edison Co. of N.Y., Inc., 460 N.Y.S.2d 784, 790 (App. Div. 1983) (reasoning that regulatory reform by the Public Service Commission “may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind”) (quoting Taylor v. Consolidated Edison Co. of N.Y., Inc., 552 F.2d 39, 45-46 (2d Cir. 1977)). Similarly, courts have approved of limitations in regulatory scope based on limits on an agency’s jurisdiction. See, e.g., Wetlands Action Network v. United States Army Corps of Eng'rs, 222 F.3d 1105, 1115 (9th Cir. 2000) (holding that in issuing a permit to fill acres of wetland, the Corps did not have to evaluate environmental impact of all three phases of the project); Montrose Parkway Alternatives. Coal. v. U.S. Army Corps of Eng’rs, 405 F. Supp. 2d 587, 597-99 22 (S.D. Md. 2005) (citing Winnebago Tribe of Neb. v. Ray, 621 F.2d 269 (8th Cir. 1980)) (holding that it was not arbitrary and capricious for the Army Corps of Engineers, in conducting an environmental assessment for a construction project, to exempt impacts that fell outside of its jurisdiction). Current theories of regulatory design emphasize the need for regulations to harness consumer choice in service of regulatory goals. In public health, and many other regulatory contexts, administrative agencies increasingly are utilizing the insights of behavioral economics to devise regulatory schemes that encourage individuals to make better decisions for themselves, rather than impose unpopular mandatory prohibitions. See Exec. Order No. 13,563, 76 C.F.R. 3821 §1(b), 4 (requiring agencies to “identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior” as well as “regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public”); Michael P. Vandenbergh, Amanda R. Carrico & Lisa Schultz Bressman, Regulation in the Behavioral Era, 95 Minn. L. Rev. 715, 741-63 (2011) (detailing how principles of behavioral economics can and should be incorporated into regulatory regimes); see generally Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 24 (2009) (arguing for regulatory approaches that “nudge” people into making more beneficial decisions by changing default options). The 23 Portion Cap Rule is grounded in this approach, as it seeks to change the default sugary-beverage serving size to one that fits healthier choices. See R.C.N.Y. tit. 24, § 81.53 (proposed) (“Larger portions lead to increased consumption and calorie intake. When people are given larger portions they unknowingly consume more and do not experience an increased sense of satiety . . . . When served more fluid ounces of a beverage, people drink more without decreasing the amount of food they eat or experiencing a difference in “fullness” or thirst.”) (internal citations omitted); Hr’g Tr. 29, June 12, 2012 (Dr. Kansagra) (“[P]eople given beverages in another study that w[ere] 53 percent larger, consumed about 20 to 33 percent more without decreasing the amount of food. This all shows that when given larger portions of beverage[s] we consume more, and we do it without realizing we consume more.”). “Nudging” consumers to buy smaller sizes of sugary drinks - instead of barring such drinks outright - promotes public health, respects consumer autonomy (the consumer can buy a second drink if she really wants to), and, by reducing consumer backlash, is likely to be more effective in achieving the public health goal than the more draconian rule favored by the Appellate Division. The Appellate Division also erred in comparing the exemptions in the Portion Cap Rule to those at issue in Boreali. To be sure, the Court in Boreali viewed the exemptions in the PHC smoking ban as evidence of the ban’s unconstitutionally legislative nature, 71 N.Y.2d at 12, but it did not condemn all 24 tailored regulation. What troubled the Court in Boreali was the combination of a “comprehensive set of rules [and exemptions] without legislative guidance,” as well as its belief that the exemptions represented a trade-off of health goals for economic concerns. Id. at 12-13. But the exemptions in the Portion Cap Rule were based on public health considerations, such as the potential benefits of some exempted drinks and the greater likelihood of consumer acceptance of a more measured restriction. Amici believe that Boreali requires this commonsense approach to regulation, which allows agencies to take the costs and benefits of different regulatory approaches into account even without literal authorization to that effect by the legislature. Should our reading of Boreali be mistaken, however, that aspect of Boreali should be overruled. Given the importance of cost assessment and tailored approaches for sensible regulation, such a blanket restriction on New York agencies’ exercise of their delegated authority would be unwise. Indeed, a framework that equates tailored exemptions with unconstitutional lawmaking and prohibits consideration of costs or the impact on consumer behavior - like the one left in the Appellate Division’s wake - is hard to square with the goal of reasoned agency decisionmaking. N.Y. C.P.L.R. § 7803(3) (McKinney 2003) (providing that administrative determinations may be reviewed in an Article 78 proceeding for 25 whether they were affected by an error of law or were arbitrary and capricious or an abuse of discretion). 2. The Portion Cap Rule Is The Product Of The BOH’s Expertise. The Appellate Division, stating that “[t]he deleterious effects (e.g. obesity) associated with excessive soda consumption are well-known,” simply erred in concluding that the BOH did not “bring any scientific or health expertise to bear” in promulgating the Portion Cap Rule. Op. at 27-28 (emphasis added). The BOH’s members are legislatively required to have extensive experience and credentials in the fields of medicine and science, N.Y.C. Charter §§ 551, 553, and they clearly utilized this expertise in evaluating the arguments for and against the Portion Cap Rule. See, e.g., Hr’g Tr. 38, Sept. 13, 2012 (Dr. Galea) (“Just to summarize my read of the 38,000 comments . . . I thought the comments about evidence were unconvincing. I thought evidence was very clear epidemiologically that behavioral choice drifts to what is available to us, to all humans, and the evidence is very clear that sugary drinks contribute to the obesity epidemic.”); id. at 40-41 (Dr. Richardson) (“I have to admit I was skeptical prior to hearing the initial proposal and presentations. But I found the arguments made by the Department and in support of the proposal to be convincing, even compelling, and those of the opponents, I have to agree with Dr. Galea, they were really not persuasive at all. I looked carefully particularly at the scientific experts and the 26 literature they cited, and even in the literature that was cited by the opponents, there were many statements in strong support of developing environmental interventions to deal with the obesity epidemic.”). Over the last century, the concerns of public health agencies have evolved with the changing nature of threats to public health - from cholera to cancer, from diphtheria to diabetes, from smallpox to smoking. With this evolution of public health issues has come a transformation in regulation, and the city’s BOH has often led the way in addressing these modern challenges. It was the first agency to require certain restaurants to post calorie content information next to menu options. R.C.N.Y. tit. 24, § 81.50 (2008); see also N.Y. State Rest. Ass’n, 556 F.3d at 134- 35 (upholding the regulation and calling obesity an “epidemic”). Many other localities have followed suit, passing similar calorie content regulations. See, e.g., 105 Mass. Code Regs. § 590.009(G) (2010); King County, Wash., Bd. Of Health Code § 5.10.016 (2013); Trans Fat and Menu Labeling Legislation, Nat’l Conference of State Legislatures, http://www.ncsl.org/research/health/trans-fat- and-menu-labeling-legislation.aspx (last updated Jan. 2013) (identifying California, Maine, New Jersey, Oregon and Vermont as adopting similar measures by statute). Congress also included a menu labeling requirement as part of the Affordable Care Act. 21 U.S.C. § 343(q)(5) (2010). 27 The city’s BOH was also the first to ban trans fats in restaurant foods, R.C.N.Y. tit. 24, § 81.08 (2012), a measure subsequently adopted by the New York City Council, and again followed by other health agencies. See, e.g., King County, Wash., Bd. Of Health Code § 5.10.035 (2013). And the federal Food and Drug Administration recently moved to potentially ban trans fats as well. Tentative Determination Regarding Partially Hydrogenated Oils; Request for Comments and for Scientific Data and Information, 78 Fed. Reg. 67169 (Nov. 8, 2013). Indeed, health agencies in Washington, D.C. and Cambridge, Massachusetts are currently considering emulating the Portion Cap Rule. See Leon Stafford, Soda Wars: Cities Seek Restrictions, Taxes to Curb Obesity, Atlanta Journal- Constitution, Nov. 12, 2012, www.ajc.com/news/news/local/soda-wars-cities-seek- restrictions-taxes-to-curb-o/nS4b2/. If left to stand, the Appellate Division’s ruling will call into question the ability of the BOH to address other new public health threats, to the detriment of the health not just of New Yorkers but the country as a whole. (C) The Portion Cap Rule Did Not Improperly Intrude On Legislative Debate, And Legislative Inaction Should Be Given Little Weight In The Boreali Analysis. Finally, the Appellate Division also erred in giving significant weight to the failure of the state legislature and the New York City Council to address sugary beverages. Although Boreali considered legislative inaction as a factor in 28 determining the constitutionality of the PHC smoking ban, Boreali involved not only a much more substantial record of legislative inaction, with over forty relevant bills failing passage, but those measures addressed exactly the same issue as the PHC regulation at issue, restrictions on smoking in public places. See Boreali, 71 N.Y.2d at 6. Here, there had been much less legislative attention paid to health problems posed by sugary drinks or, more specifically, to a portion cap. Moreover, since Boreali, this Court has repeatedly stated that legislative failure to enact legislation similar to a challenged regulation will not result in the regulation’s invalidation. See Bourquin, 85 N.Y.2d at 787-88 (“[T]hat proposed legislation similar to [the] Executive Order . . . was not passed does not indicate legislative disapproval of the programs contemplated by the order. Legislative inaction, because of its inherent ambiguity, ‘affords the most dubious foundation for drawing positive inferences.’”) (quoting Clark, 66 N.Y.2d at 190-91)); Higgins, 81 N.Y.2d at 170 (rejecting the argument that “the failed bills alone warrant the conclusion that the agency has exceeded its mandate.”); Health Facilities Ass’n, 77 N.Y.2d at 348 n.2 (“[W]e ascribe no particular significance to the legislative inaction in this case.”). Indeed, in Serio, this Court viewed “[t]he Legislature’s failure to enact time limits, despite having repeatedly considered doing so,” as “evinc[ing] a legislative preference to yield to administrative expertise in filling in 29 an interstice in the statutory scheme by the setting of such limits.” 100 N.Y.2d at 866 (emphasis added). This Court’s reluctance to give weight to legislative inaction is appropriate. Not only is legislative inaction deeply ambiguous, but using legislative inaction as evidence of administrative overreach creates a troubling incentive - “inviting opponents of a regulation to introduce legislation doomed to fail to bolster legal attacks on the regulation’s validity.” Paul A. Diller, Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of Woodrow Wilson, 40 Fordham Urb. L. J. 1859, 1876 (2013) (citing Boreali, 517 N.E.2d at 1359 (Bellacosa, J., dissenting) (arguing that the majority’s approach to legislative inaction “will be welcomed by opponents of all kinds of existing laws” who argue for constricted agency authority)). Accordingly, amici urge that - as part of its clarification of Boreali - the Court should take this opportunity to rule that legislative inaction will rarely if ever be the basis for invalidating a regulation. However, if legislative inaction is considered to be instructive, the fact that the City Council has not moved to overturn the Portion Cap Rule should also be taken into account in assessing the regulation’s consistency with legislative policy and, thus, its constitutionality. 30 III. The Portion Cap Rule Should Be Sustained Under A Nonconstitutional Approach That Focuses On Statutory Authorization And Reasoned Administrative Decisionmaking. The Portion Cap Rule is also valid under an approach to delegation that focuses on whether an administrative regulation is statutorily authorized and represents reasoned decisionmaking. The federal courts take this approach as a means of permitting broad legislative grants while guarding against administrative excess. Although such a focus on statutory authorization and reasoned decisionmaking overlaps with key features of the Boreali inquiry, it avoids a direct separation of powers assessment in lieu of a nonconstitutional analysis that emphasizes statutory interpretation and administrative law prohibitions on arbitrary decisionmaking. A similar approach is suggested in several Boreali decisions, but not fully developed. Amici urge this Court to expressly direct Boreali towards this nonconstitutional analysis. (A) Under Federal Law, Broad Delegations Are Constitutional And Courts Check Administrative Decisionmaking Through Nonconstitutional Means The U.S. Supreme Court “ha[s] ‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.’” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474-75 (2001) (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)). As a result, the Supreme Court has upheld a 31 number of broad delegations as satisfying the constitutional requirement that Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928); see, e.g., Nat’l Broad. Co. v. United States, 319 U.S. 190, 225-26 (1943) (upholding delegation to regulate national airwaves in the “public interest”). Although the federal courts do not invalidate delegations as unconstitutionally broad, they guard against excessive administrative assertions of authority through alternative, nonconstitutional means. Prime among these are constitutionally-inspired canons of construction, with courts occasionally construing statutes narrowly to address delegation concerns. See, e.g., Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) (concluding that Congress would not “delegate a decision of such economic and political significance to an agency in so cryptic a fashion”); Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 315-16 (2000) (identifying a number of canons of statutory interpretation as motivated by nondelegation concerns). Another important mechanism by which the federal courts police delegated authority is administrative law, in particular the requirement that agencies engage in reasoned decisionmaking. See Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479, 491-96 (2010) (arguing that 32 enhanced judicial review of agency decisionmaking under the arbitrary and capricious standard reflects in part “constitutional concerns with broad delegations of power to agencies and the attendant risk of unaccountable and arbitrary exercises of administrative power”); see also Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952, 958-59 (2007) (identifying the administrative law of contemporary agency explanation as a form of nondelegation doctrine); cf. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 536 (2009) (Kennedy, J., concurring in part and concurring in the judgment) (describing the reasoned decisionmaking requirement as reflecting the danger that “[i]f agencies were permitted unbridled discretion, their actions might violate important constitutional principles of separation of powers and checks and balances.”). In short, the federal courts have switched from policing constitutional constraints on delegation directly to doing so indirectly, by ensuring that transferred authority remains adequately controlled. See Cynthia Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452, 487-88 (1989). The great virtue of this approach is that it allows courts to avoid the difficult line-drawing that is necessarily attendant on direct constitutional scrutiny of delegation and better target their attention on exercises of delegated authority that raise concerns of administrative overreach or arbitrary decisionmaking. 33 Seeds of a similar emphasis on controlling delegated authority are evident in this Court’s Boreali jurisprudence. 7 Thus, in Serio this Court distinguished between “the threshold question whether the Legislature has unconstitutionally delegated its authority to an administrative agency . . . and the related question whether . . . the agency has exceeded the scope of its constitutionally conferred mandate,” identifying Boreali as instructive for the latter inquiry. 100 N.Y.2d at 864. Moreover, this Court occasionally has invoked Boreali for the basic administrative law proposition that an agency lacks authority to adopt a regulation that violates the terms of a governing statute. See, e.g., Matter of Jewish Home & Infirmary v. N.Y. State Dep’t of Health, 84 N.Y.2d 252, 260, 261-63 (1994); Matter of Campagna. v. Shaffer, 73 N.Y.2d 237, 242-43 (1989). Hence, despite being described in constitutional terms, Boreali is better understood as a nonconstitutional inquiry whose animating concern is controlling delegation authority rather than policing separation of powers limits on delegation. In addition to emphasizing that Boreali is to be applied in a flexible and pragmatic manner, this Court should underscore Boreali’s nonconstitutional aspect. It should redirect Boreali’s focus from the scope of the legislative grant of administrative authority at issue to assessing whether the agency wielded its 7 Indeed, Boreali itself drew parallels to federal jurisprudence on delegation, relying on federal cases in concluding that “the principle that the legislative branch may not delegate all of its law- making powers to the executive branch has been applied with utmost reluctance” and stating that the U.S. Supreme Court’s brief suggestion of a more robust delegation inquiry in the early New Deal period “has quite rightfully fallen into disrepute.” 71 N.Y.2d at 9-10, n.1. 34 powers reasonably and consistent with governing statutes. This approach would serve the separation of powers goal of maintaining the elected legislature as the branch of government that sets policy while at the same time enabling the legislature to use expert agencies to flesh out the details and apply that policy to new circumstances, subject to judicial oversight for reasonableness and compliance with the underlying legislative grant. (B) The Portion Cap Rule Is Statutorily Authorized And Is Not Arbitrary Or Capricious The validity of the Portion Cap Rule is equally clear under such a nonconstitutional analysis that emphasizes statutory authorization and reasoned decisionmaking. As discussed above, the Portion Cap Rule is clearly within the scope of the BOH’s authority under the New York City Charter. Not only does the Rule fall under the Charter’s general authorization of the BOH to adopt Health Code provisions that “regulate all matters affecting health in the city of New York,” but it is also plainly encompassed by the Charter’s more specific authorizations, such as the grant of power to “control . . . chronic diseases and conditions hazardous to life and health.” N.Y.C. Charter § 556, 556(c)(2) (emphasis added). Given this Court’s precedent upholding such broad delegations to public health authorities, see Part I.B, constitutional delegation concerns do not support construing these Charter provisions narrowly, as the Appellate Division erroneously claimed. Op. at 24. But the Rule is also easily sustained under a 35 narrow construction of the BOH’s authority as extending only to “inherently harmful and inimical matters.” See Part II.A. It is equally apparent that the Portion Cap Rule represents reasoned agency decisionmaking and thus complies with New York’s prohibition on arbitrary and capricious decisionmaking. See N.Y. C.P.L.R. § 7803(3) (McKinney 2003). Review of agency decisionmaking under the arbitrary and capricious standard is notably deferential. As this Court has repeatedly stressed, “[a]n administrative agency’s exercise of its rule-making powers is accorded a high degree of judicial deference, especially when the agency acts in the area of its particular expertise.” Matter of Consolation Nursing Home v. Comm’r of N.Y. State Dep’t of Health, 85 N.Y.2d 326, 331-32 (1995) (citations omitted); see also Jorling, 85 N.Y.2d at 382; N.Y. State Ass’n of Counties v. Axelrod, 78 N.Y.2d 158, 166 (1991) (emphasizing that “[a]dministrative rules . . . are scrutinized for genuine reasonableness and rationality in the specific context” and that a “challenger must establish that a regulation is so lacking in reason for its promulgation that it is essentially arbitrary.”) (quoting Matter of Marlberg v. Cole, 286 N.Y. 202, 212 (1941)) (internal quotations omitted); Matter of N.Y. Pub. Interest Research Grp. v. N.Y. State Dep’t of Ins., 66 N.Y.2d 444, 448 (1985) (the agency’s “interpretation, if not irrational or unreasonable, will be upheld in deference to his special competence 36 and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision”). The Portion Cap Rule has the rational basis New York law requires. Far from supporting a conclusion of irrationality, the exemptions and limitations in the Rule in fact demonstrate the type of sensitivity to contextual factors that New York’s prohibition against arbitrary and capricious rulemaking demands. These exemptions and their rationales reflect expert assessments of the comparative benefits and harms of different sugary beverages. Hr’g Tr. 25, Sept. 13, 2012 (Dr. Kansagra) (“Fruit juice is excluded in the proposal because fruit juice contains no added sugar and provides many of the nutritional benefits of the whole fruit from which it is derived and part of a healthy diet in moderate quantity. Dairy drinks are excluded because they contain calcium, Vitamin D and potassium, and these are nutrients frequently found to be deficient, according to the USDA. Dairy also has an effect of satiety and people tend to feel more full with dairy drinks and they compensate for those calories they take in later, which doesn’t happen with most sugary drinks.”). The BOH’s overall concern with the public health consequences of excessive consumption of sugary beverages is also well-supported by the scientific literature. Hr’g Tr. 12-13, Sept. 13, 2012 (Dr. Kansagra) (“We looked at a wide variety of studies and we looked at both before the introduction of the studies as well as looked at all the studies that were cited in the comments received 37 back . . . . And when you look at all of the literature, the conclusion is that sugary drinks are linked with weight gain and obesity.”). This case is thus notably dissimilar from New York Association of Counties, where this Court held that a state DOH Medicaid regulation was arbitrary precisely because it imposed a “universal,” “across-the-board,” and “blanket” reduction in Medicaid rates without consideration of relevant factors. 78 N.Y.2d at 167-68. The BOH’s effort to limit the Rule’s application to entities within its oversight jurisdiction is likewise evidence of appropriate administrative restraint and contextual sensitivity, not grounds for complaint. See Record on Appeal, 607- 15; Hr’g Tr. 25, Sept. 13, 2012 (Dr. Kansagra) (“Alcohol is not regulated under this proposal because that is regulated by the state. Non-food service establishments are not regulated for the same reason, jurisdiction lies with the state.”). See also Montrose Parkway Alts. Coal., 405 F. Supp. 2d at 597-99 (finding agency did not act arbitrarily or capriciously in not considering environmental impacts that fell outside the agency’s jurisdiction). The U.S. Supreme Court recently emphasized that even an agency’s assertion of broader jurisdiction should be reviewed under ordinary administrative law principles and qualifies for deference if it represents a reasonable interpretation of an ambiguous statute. See City of Arlington v. FCC, 133 S. Ct. 1863, 1869-73 (2013). Surely the BOH’s reasonable reading of its jurisdictional limitations deserves similar respect. 38 CONCLUSION For the foregoing reasons, the order of the Appellate Division should be reversed. 39 Dated: April 22, 2014 New York, NY Respectfully submitted, ________________________ Gillian E. Metzger Center for Constitutional Governance Columbia Law School 435 West 116th Street New York, NY 10027 RICHARD B. PRESS WILLIAM K. RAWSON LORI ALVINO MCGILL MICHAEL E. BERN KALA SHERMAN-PRESSER ANDREW D. PRINS LATHAM & WATKINS LLP 555 Eleventh Street, NW, Suite 1000 Washington, DC 20004 Telephone: (202) 637-2200 Facsimile: (202) 637-2201 rick.bress@lw.com JAMES E. BRANDT LATHAM & WATKINS LLP 885 Third Avenue New York, New York 10022 Telephone: (212) 906-1200 Facsimile: (212) 751-4864 james.brandt@lw.com Counsel for Plaintiff-Petitioner- Respondent The American Beverage Association JAMES W. QUINN SALVATORE A. ROMANELLO GREGORY SILBERT WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8807 james.quinn@weil.com Counsel for Plaintiff-Petitioner- Respondent The National Restaurant Association STEVEN F. MOLO BEN QUARMBY MOLOLAMKEN LLP 540 Madison Avenue EVAN H. KRINICK BARRY I. LEVY BRIAN L. BANK RIVKIN RADLER, LLP 926 RXR Plaza Uniondale, New York 11556-0926 Telephone: (516) 357-3483 Facsimile: (516) 357-3333 evan.krinick@rivkin.com Counsel for Plaintiff-Petitioner- Respondent Soft Drink and Brewery Workers Union, Local 812, International Brotherhood of Teamsters MATTHEW N. GRELLER MATTHEW N. GRELLER, ESQ., LLC 75 Clinton Avenue 40 New York, New York 10022 Telephone: (212) 607-8170 Facsimile: (212) 607-8161 smolo@mololamken.com Counsel for Plaintiffs-Petitioners- Respondents The New York Statewide Coalition of Hispanic Chambers of Commerce and The New York Korean- American Grocers Association Millburn, New Jersey 07041 Telephone: (917) 345-0005 Facsimile: (973) 327-2472 matt@mattgreller.com Counsel for Plaintiff-Petitioner- Respondent The National Association of Theatre Owners of New York State NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, New York 10007 Attorneys for appellants