Delineating Deference to Agency Science: Doctrine or Political Ideology?
Nelson, Laura Anzie, Environmental Law
I. INTRODUCTION II. THE PREDICAMENT: A MIXTURE OF POLICY AND SCIENCE A. Background" Judicial Deference to Agency Rulemaking B. Scientific Expertise C. The Ninth Circuit After Lands Council 1. When Are Agencies Given Deference? a. Ecology Center v. Castaneda b. Latino Issues Forum v. United States Environmental Protection Agency 2. When Is Agency Analysis Remanded? a. Center for Biological Diversity v. United States Department of Interior (CBD v. DOI) b. Tucson Herpetological Society v. Salazar 3. Can These Caves Be Reconciled? III. THE IMPERFECTION: POLITICAL IDEOLOGY A. The Relationship Between Legal Doctrine and the Individual B. Survey of Recent Environmental Cases C. How Other Courts Have Treated Agency Expertise D. Implications of Ideological Voting and a Proposed Remedy. IV. THE ASPIRATION: CONSISTENCY
Judicial review legitimates the American administrative system. (1) Most importantly, it provides reassurance to the public that administrative agencies are operating within the limits of their power delegated by Congress, appropriately navigating a myriad of statutory mandates. (2) Yet discretion among agencies to complete Congress's delegated tasks is essential for efficient and creative governance. (3) Any model for judicial review must strike a careful balance between ensuring legitimacy through review and protecting flexibility and efficiency through agency deference.
In 1965, writing amidst a heated policy debate over federal regulatory agencies, (4) Professor Louis Jaffe set forth three goals for a system of judicial review of administrative agencies: "comprehensiveness, simplicity, and predictability." (5) These goals are still relevant today. The ability of an agency to comprehend and predict the legality of its decisions is integral to efficient governance. If a court finds a particular agency action unlawful, presumably the agency can recalibrate its operations, striving to not exceed its newly defined legal bounds. However, if courts appear to fluctuate--upholding one administrative decision while vacating another decision on similar facts--then agencies will either devote their limited resources to preparing an extensive record in anticipation of litigation, or conversely, dedicate little time to their analyses, hoping to get a deferential panel. (6) Such inconsistent judicial results are sometimes called the "lottery" effect. (7) While a degree of individual variation is inevitable--no set of facts are identical and no body of judges can apply the law with precise uniformity--a high level of unpredictability in judicial review greatly impairs the honesty and integrity of governmental operation.
"Judicial review" assumes different forms for different situations. (8) "Arbitrary and capricious review," a standard set forth in the Administrative Procedure Act (APA), (9) governs agency decisions in informal rulemaking. (10) However, within that standard, the review of an agency's determinations of fact differ from the review of an agency's statutory interpretation or policy determinations. (11) Because judges are experts in the law, not science or economics, they exact a more deferential standard of review to an agency's factual determinations. Moreover, courts are especially deferential when reviewing agencies' evaluations of technical matters and scientific data. (12) However, determining what constitutes a scientific "fact" is not always a simple task. (13)
To illustrate, imagine conducting a risk assessment for an industrial waste management site. (14) Setting the parameters of the study and selecting the modeling techniques are not only scientific design choices, they also involve policy choices and value systems. (15) To determine what measures a waste management site should take to prevent adverse impacts to the groundwater supply, suppose the risk assessment models human exposure to groundwater contaminants due to inhalation during a shower. …