Current Trends in Judicial Review of Environmental Agency Action

By O'Scannlain, Diarmuid F. | Environmental Law, Spring 1997 | Go to article overview

Current Trends in Judicial Review of Environmental Agency Action


O'Scannlain, Diarmuid F., Environmental Law


A Supreme Court Justice once began a lecture on administrative law with this apt observation: "Administrative law is not for sissies--so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture."(1)

I. INTRODUCTION

Today we address an issue---judicial review of administrative action--that, dull or not, continues to grab the attention of the courts and commentators. The debate, for reasons I shall discuss, is especially important to the environmental law practitioner, in whose field many battles over the appropriate scope of judicial review are being fought.

The broad topic on which I am to comment--Current Trends in Judicial Review--covers a multitude of issues, far more, I am afraid, than to which a forty-five minute lecture can do justice. I speak, of course, only for myself and not for my court. My focus today will be on trends in judicial review of environmental agency interpretations of law post-Chevron.(2) The cynic might deem this an impossible task at the outset: according to some legal scholars this area of jurisprudence is so confused that there exist no identifiable trends. I, for one, do not share that view. By analyzing a few carefully selected cases, I hope to illustrate, if nothing else, the key concepts that drive judicial review in this area today.

II. AVAILABILITY OF JUDICIAL REVIEW

While I will focus my remarks on trends in actual substantive judicial review, we should keep in mind that recent trends in the threshold matter of the availability of judicial review are all equally important.

We could examine at length, for example, recent trends in judicial interpretation of the statutory preclusion exemption of the Administrative Procedure Act (APA).(3) Or, we could examine standing, focusing on the Supreme Court's decision in Lujan v. Defenders of Wildlife,(4) or on recent trends in the interpretation of citizen suit provisions.(5) At yet another level, we could examine trends toward expansion of the APA exception to judicial review for agency action that is "committed to agency discretion by law."(6)

Rather than focus on the availability of judicial review, I would like to concentrate on recent trends in the actual substantive review of agency interpretations of environmental statutes.

A. Substantive Review of Environmental Agency Action

Our starting point is Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.(7) Chevron is regarded as "one of the most important administrative law decisions in recent memory,"(8) and "one of the very few defining cases in the last twenty years of American public law."(9)

1. Chevron: A Two-Step Approach

Justice Stevens, writing for the unanimous Chevron court, adopted a two-step analytical approach to judicial deference to agency interpretations of law:

First, always, is the question whether Congress has directly spoken to the

precise question at issue. If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency, must give effect

to the unambiguously expressed intent of Congress.(10)

Failing that, the analysis moves to step two:

If, however, the court determines Congress has not directly addressed the

precise question at issue, the court does not simply impose its own

construction on the statute, as would be necessary in the absence of an

administrative interpretation. Rather, if the statute is silent or

ambiguous with respect to the specific issue, the question for the court is

whether the agency's answer is based on a permissible construction of the

statute.(11)

Chevron itself provides a good example of how the two-step analysis applies. The environmental statute at issue in Chevron regulated "stationary sources" of air pollution.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Current Trends in Judicial Review of Environmental Agency Action
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.