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)
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
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. …