Regulation and the Courts: The Case of the Clean Air Act

By R. Shep Melnick | Go to book overview
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CHAPTER THREE
The Dilemmas of Judicial Review

Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

-- Justice Marshall in Citizens to Preserve Overton Park v. Volpe, 1971

NEARLY EVERY Clean Air Act case that comes to court presents the judges who must decide it with a dilemma. On the one hand, judges hear plaintiffs claim that they have suffered irreparable harm as a result of the bureaucracy's overzealousness, callousness, inattention, timidity, ignorance, or ineptitude. Judges see that the administrators who carry out the Clean Air Act have the power to destroy firms, put thousands of people out of work, and increase American dependence on foreign oil, as well as to protect the health of millions of Americans and the beauty of pristine wilderness areas. The harm caused by agency action or inaction is often both serious and permanent.

On the other hand, most judges recognize their limited expertise in this regulatory area. The Environmental Protection Agency's decisions frequently rest on judgments made after long deliberation by scientists, engineers, economists, and experienced enforcement officials and on political agreements painstakingly negotiated among officials from several agencies, Congress, the White House, and the states. It can take days for judges just to figure out what the key issues are. It is not surprising therefore, that judges usually uphold agency decisions. As the administrative apparatus of the federal government extends its reach, judges hear more complaints about the bureaucracy running out of control, but find it difficult to provide adequate supervision.

In offering guidance to the lower courts, the Supreme Court and Congress have restated rather than resolved this dilemma. In its landmark Overton Park opinion--cited in nearly every subsequent administrative

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