Academic journal article Albany Law Review

Lighting the Way: The Lighthouse Decision and Judicial Review of Agency Action

Academic journal article Albany Law Review

Lighting the Way: The Lighthouse Decision and Judicial Review of Agency Action

Article excerpt


Despite the increasing complexity of administrative agency action, New York's courts have received relatively limited guidance on judicial review or oversight of such agency actions, particularly informal agency action. However, the law of judicial review of agency action received an important addition in the Court of Appeals decision Lighthouse Pointe Property Associates LLC v. New York State Department of Environmental Conservation. (1) This development in New York administrative law marks a limit on judicial deference to agency action and perhaps more importantly demonstrates the need for a realistic hard look at the agency record, as well as a degree of deference calibrated to the reliability of the administrative action because not all agency decisions deserve the same degree of deference. (2)

The need for these refinements is particularly important in the environmental arena where the New York State Department of Environmental Conservation ("DEC") is involved in regulating a substantial aspect of New Yorkers' lives and business endeavors. (3) This regulatory process involves making both formal and informal decisions--decisions that the DEC claims should receive significant deference from the courts due to its expertise in regulating the environment. (4) Accordingly, the standard of judicial review dealt with in the Lighthouse decision is a matter that affects our daily lives, and therefore deserves considerable attention. (5) However, there has long been a tension between advocates of a more probing review and the more conventional approach of granting considerable deference to agency action. (6) This may be a result of the complex balancing act courts must perform: they must review many different types of agency action across myriad factual contexts, inquiring deeply enough to satisfy legally prescribed criteria of rationality and fairness but maintaining a light enough touch to respect the legitimate authority of agencies to make policy. (7)

Historically, views on where the correct balance lies have evolved over time, from the origins of the administrative state in the time of the New Deal to the present day. (8) The stakes of agency decision making can be high. (9) This is especially true in the realm of environmental law, where agency determinations regarding complex scientific phenomena can have significant implications for the environment, human health, and the economy. (10) As Professor Strauss has written, the key is striking the right balance:

   If one could capture in a formula the level and object of
   judicial scrutiny that would arm the forces of reason within
   the agencies without encouraging defensive, excess that
   would be our goal. It is, as it always has been, a matter of
   the judges being aware of their own limits at the same time
   as they set limits for others. (11)

But regardless of precisely where the balance of rigor and deference is struck, the need for some kind of meaningful judicial review--a review that actually engages with the critical issues of a case--is an enduring theme of American administrative law. Louis Jaffe has opined, '"[t]he availability of judicial review is the necessary condition, psychologically if not logically, for a system of administrative power which purports to be legitimate, or legally valid."' (12) The Lighthouse appeal is a fair example of the Court of Appeals trying to find the correct balance.


Lighthouse involved a dispute over the administration of a new legislative program, the Brownfield Cleanup Program ("BCP"), (13) designed to put areas contaminated with hazardous waste into productivity through tax credits keyed to cleanup and subsequent capital expenditures, and a state certification that the site had been cleaned up to a level where it could be developed. (14) The critical issue in Lighthouse was whether the petitioner's property was sufficiently contaminated with hazardous waste to be classified as a "brownfield" within the meaning of the BCP. …

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