Super deference, the science obsession, and judicial review as translation of agency science

Michigan Law Review

Volumn 109, Issue 5, 2011, Pages 733-784

  Meazell, Emily Hammond ^a  

^a UNIVERSITY OF OKLAHOMA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79952837921     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (484)

1. Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983).
2. see also Indus. Union Dep't v. Hodgson, 499 F.2d 467, 474-75 (D.C. Cir. 1974) (suggesting deference for determinations at "frontiers of scientific knowledge").
3. See, e.g., Martin Shapiro, Administrative Discretion: The Next Stage, 92 Yale L.J. 1487, 1507 (1983) ("[T]echnocrats do understand and judges clearly cannot understand.").
4. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863 (1984) (noting agencies make interpretations "in the context of implementing policy decisions in a technical and complex arena").
5. See Cass R. Sunstein, On the Costs and Benefits of Aggressive Judicial Review of Agency Action, 1989 Duke L.J. 522, 529 ("[A] world without aggressive judicial review might well suffer from increases in lawlessness, carelessness, overzealous regulatory controls, and inadequate regulatory protection.").
6. 5 U.S.C. §§ 701-06 (2006). The APA is codified at 5 U.S.C. §§ 551-59, 701-06.
7. for more on the scope and intent of the APA, see Emily Hammond Meazell, Scientific Avoidance: Toward More Principled Judicial Review of Legislative Science, 84 Ind. L.J. 239 (2009). (describing judicial review under the APA).
8. For a critical analysis of extreme judicial deference to legislative science, see Emily Hammond Meazell, Scientific Avoidance: Toward More Principled Judicial Review of Legislative Science, 84 Ind. L.J. 239 (2009).
9. See generally Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749 (2007) [hereinafter Bressman, Procedures as Politics].
10. Professor Bressman presents a model of administrative law in which the Supreme Court is positioned as a mediator between executive and legislative branches. As she states, "[T]he Court may enforce administrative procedures in order to help ensure that agency decisions track dominant legislative preferences." Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. at 1751.
11. See Carl F. Cranor, The Dual Legacy of Daubert v. Merrell-Dow Pharmaceutical: Trading Junk Science for Insidious Science, in Rescuing Science from Politics: Regulation and the Distortion of Scientific Research 120, 122 (Wendy Wagner & Rena Steinzor eds., 2006) [hereinafter Rescuing Science] (arguing that legal endorsement of mistaken science threatens the legitimacy of law as an institution).
12. Scholars have long recognized this potential. Some especially noteworthy works are Rescuing Science, Carl F. Cranor, The Dual Legacy of Daubert v. Merrell-Dow Pharmaceutical: Trading Junk Science for Insidious Science, in Rescuing Science from Politics: Regulation and the Distortion of Scientific Research 120, 122
13. Holly Doremus, Science Plays Defense: Natural Resource Management in the Bush Administration, 32 Ecology L.Q. 249 (2005).
14. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613 (1995) [hereinafter Wagner, Science Charade]. Furthermore, even pure research science incorporates policy decisions; as discussed in Section I.B., the juxtaposition of science and the administrative process thus results in a pancaking of policy decisions.
15. See Sheila Jasanoff, The Fifth Branch: Science Advisors as Policymakers 20 (1990) ("Although these controversies seemed on their face to be about science, the alignment of parties on either side generally conformed to basic political and ideological cleavages between proand antiregulation interests in American society.").
16. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J. 1385, 1400 (1992) [hereinafter McGarity, Deossifying] ("[Commentators] pick apart the agencies' preambles and background documents and launch blunderbuss attacks on every detail of the legal and technical bases for the agencies' rules.").
17. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. (1995), at 1657 ("[A]dvocates... become single-mindedly engaged in presenting opposing scientific justifications, demanding outside scientific review, or attacking the competence of the agency's science when it leads to results that run counter to their own unexpressed policy preferences.").
18. See generally Cary Coglianese & Gary E. Marchant, Shifting Sands: The Limits of Science in Setting Risk Standards, 152 U. Pa. L. Rev. 1255, 1264 (2004) ("Science has considerable rhetorical appeal when it comes to defending regulatory decisions, as it is often described and perceived as being 'objective.' ").
19. 462 U.S. 87 (1983).
20. For a detailed discussion of Baltimore Gas, see Andrew D. Siegel, The Aftermath of Baltimore Gas & Electric Co. v. NRDC: A Broader Notion of Judicial Deference to Agency Expertise, 11 Harv. Envtl. L. Rev. 331, 378-80 (1987).
21. See Andrew D. Siegel, The Aftermath of Baltimore Gas & Electric Co. v. NRDC: A Broader Notion of Judicial Deference to Agency Expertise, 11 Harv. Envtl. L. Rev. 331, 378-80 (1987) (criticizing the broad deference to agencies in Baltimore Gas).
22. Joel Yellin, Science, Technology, and Administrative Government: Institutional Designs for Environmental Decisionmaking, 92 Yale L.J. 1300, 1320-24 (1983) (arguing that deference neither contributes to balance between institutions nor encourages reasoned decision making).
23. See, e.g., Wagner, Science Charade, 95 Colum. L. Rev., at 1661-67 (arguing super deference contributes to science charade).
24. See, e.g., Holly Doremus, Scientific and Political Integrity in Environmental Policy, 86 Tex. L. Rev. 1601, 1631 (2008) (citing super-deference principle).
25. Theodore C. Hirt, Current Issues Involving the Defense of Congressional and Administrative Agency Programs, 52 Admin. L. Rev. 1377, 1397 (2000) ("In determining whether the agency's decision is arbitrary and capricious, the court is not to weigh the scientific evidence or inquire into the wisdom of regulations based on that evidence.").
26. Carla Mattix & Kathleen Becker, Scientific Uncertainty Under the National Environmental Policy Act, 54 Admin. L. Rev. 1125, 1158 (2002) (reciting super deference as part of the arbitrary and capricious standard).
27. See, e.g., Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 Duke L.J. 387, 411 (noting vacillation).
28. Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051, 1064-66 (1995) [hereinafter Shapiro & Levy, Judicial Incentives] (describing the "proliferation of manipulable categories to which different degrees of deference apply").
29. Donald W. Stever, Jr., Deference to Administrative Agencies in Federal Environmental, Health, and Safety Litigation- Thoughts on Varying Judicial Application of the Rule, 6 W. New Eng. L. Rev. 35, 45 (1983) (describing the spectrum of "hard look," "quick look," and "no look" cases).
30. See, e.g., E. Donald Elliott, Strengthening Science's Voice at EPA, Law & Contemp. Probs., Autumn 2003, at 45, 47 ("[S]cience is conspicuously absent from internal EPA deliberations.").
31. Steven Goldberg, The Reluctant Embrace: Law and Science in America, 75 Geo. L.J. 1341, 1365-66 (1987) ("Regulatory agencies are regularly accused of being 'captured' by industry, consumer groups, members of Congress, or bureaucratic inertia. They are never accused, however, of being captured by scientists.").
32. But see Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 Tex. L. Rev. 525, 528 (1997) [hereinafter Ossification] ("[C]ontinuing scrutiny of reviewing courts under the hard-look doctrine caused the rulemaking process to 'ossify' to a disturbing degree.").
33. See Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. (1995), at 1661-67 (contending that the desire to minimize judicial review incentivizes agencies to deliberately emphasize the scientific aspects of what are ultimately value choices).
34. See Jim Chen, Legal Mythmaking in a Time of Mass Extinctions: Reconciling Stories of Origins with Human Destiny, 29 Harv. Envtl. L. Rev. 279, 299-300 (2005) (noting that "[m]ore than most other areas of legal endeavor," environmental law involves scientific determinations within agency's expertise).
35. Jim Chen, Webs of Life: Biodiversity Conservation as a Species of Information Policy, 89 Iowa L. Rev. 495, 517 (2004) (calling "hard look" under NEPA "toothless," and citing Baltimore Gas).
36. Holly Doremus, The Purposes, Effects, and Future of the Endangered Species Act's Best Available Science Mandate, 34 Envtl. L. 397, 429-30 (2004) (suggesting that deference may undermine the Endangered Species Act's best available science mandate). Indeed, a February 2010 Westlaw search of 185 cases citing Baltimore Gas for the super-deference principle revealed that over 75 percent of those cases involved environmental law.
37. See Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev., at 1662-66.
38. See Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 Duke L.J. 984 (presenting empirical evidence suggesting that changes in law increasing judicial deference result in more agency decisions being rationalized on the basis that has promised judicial deference).
39. But see E. Donald Elliott, Strengthening Science's Voice at EPA, Law & Contemp. Probs., Autumn 2003, at 51 (arguing judicial review is too "episodic, confused, and inconsistent to have much of a systematic effect on reforming agency practices").
40. See Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577, 637 (1993).
41. See Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 Duke L.J., at 1064 (describing the "proliferation of manipulable categories to which different degrees of deference apply").
42. See Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. 753, 761 n.31 (2006) (collecting defenders of hard-look review because it ensures agency has truly engaged in reasoned decision making).
43. Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. at 763-65 (collecting criticisms).
44. see also Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev., at 1766 (stating most views of judicial review fall into two camps: those favoring and those disfavoring additional emphasis on agency procedure).
45. Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (1983).
46. 5 U.S.C. §§ 706(2)(A), (E) (2006). Another possibly relevant subsection is § 706(2)(C) (relating to agency action "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right"), which may be implicated when courts review agencies' interpretation of their statutory mandates and apply the Chevron doctrine.
47. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
48. As Chevron itself illustrates, an agency's interpretation of its ambiguous statutory mandate often implicates the agency's expertise. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. at 865.
49. Although consideration of the Chevron doctrine would also yield policy decisions made in light of scientific uncertainty, the statutory-interpretation basis for applying Chevron sets that doctrine beyond the scope of this Article. Cf. Lisa Schultz Bressman, Chevron's Mistake, 58 Duke L.J. 549, 585 (2009) ("[T]he effect of each is much the same.").
50. Nevertheless, Chevron has a great deal to say about the relationship between courts and agencies generally, and to that extent, I draw on Chevron for support. See, e.g., 467 U.S. at 865 ("Judges are not experts in the field, and are not part of either political branch of the Government.... While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices....").
51. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-15 (1971). Formal rulemaking and adjudication are governed by §§ 556 and 557 of the APA. See 5 U.S.C. §§ 553(c), 554(a) (2006) (specifying the applicability of formal procedures to rulemaking and adjudication, respectively).
52. See Camp v. Pitts, 411 U.S. 138, 138-40 (1973) (per curiam) (illustrating the catch-all approach).
53. Overton Park, 401 U.S. at 416.
54. Ass'n of Data Processing Serv. Orgs. v. Bd. of Governors, 745 F.2d 677, 683 (D.C. Cir. 1984) (Scalia, J.) (calling arbitrary and capricious provision a "catchall").
55. See Ass'n of Data Processing, 745 F.2d at 683 (the substantial evidence standard is "separately recited in the APA not to establish a more rigorous standard of factual support but to emphasize that in the case of formal proceedings the factual support must be found in the closed record as opposed to elsewhere").
56. Overton Park, 401 U.S. at 416 ("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.") (arbitrary and capricious).
57. see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (stating that court may not "displace" the agency's "choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo") (substantial evidence).
58. As described in Overton Park, the arbitrary and capricious standard requires that agencies have made a decision "based on a consideration of the relevant factors" without "clear error of judgment." 401 U.S. at 416. Substantial evidence, on the other hand, means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
59. see also Universal Camera, 340 U.S. at 487-88 (APA requires reviewing courts to consider the whole record to ascertain substantiality).
60. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
61. See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. at 1778 ("The standard legal justification for the reasoned decisionmaking requirement is that it promotes rationality, deliberation, and accountability.").
62. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 850-51 (D.C. Cir. 1970) (using term "reasoned decision-making").
63. 463 U.S. 29 (1983).
64. 463 U.S. at 43.
65. Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 Colum. L. Rev. 1093, 1129 (1987).
66. But see Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev., at 1782-83 (explaining State Farm's approach as connected to congressional monitoring).
67. See 463 U.S. at 57.
68. Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (1983).
69. For now, I simply describe Baltimore Gas and the super-deference principle. For a critical examination of that case, see 462 U.S. at 89-90.
70. 462 U.S. at 89-90.
71. 462 U.S. at 89-90 (describing the "zero-release" assumption).
72. 462 U.S. at 103.
73. See Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 Duke L.J. 387, 411 (collecting sources).
74. 322 U.S. 111 (1944).
75. 322 U.S. at 131.
76. E.g., Occupational Safety and Health Act, 29 U.S.C. § 655(b)(5) (2006) (requiring the "best available evidence" in promulgating exposure standards for toxic materials or harmful physical agents); Clean Water Act, 33 U.S.C. § 1314(a)(1) (2006) (requiring the "latest scientific knowledge" for water quality criteria); Clean Air Act, 42 U.S.C. § 7408(a)(2) (2006) (requiring the "latest scientific knowledge" for air quality criteria documents).
77. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971);see also APA, 5 U.S.C. § 706 (2006) ("In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party....").
78. There are some narrow exceptions. For example, if a proponent alleges an agency ignored a significant aspect of the problem, that proponent may seek to have evidence admitted that would be relevant to the agency's failings. See, e.g., Nat'l Audubon Soc'y v. U.S. Forest Serv., 46 F.3d 1437, 1447 (9th Cir. 1993) (describing exceptions to the record evidence rule).
79. That evidence would be subject to the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 479 (1993).
80. See, e.g., Hells Canyon Pres. Council v. Jacoby, 9 F. Supp. 2d 1216, 1223-24 (D. Or. 1998) (applying Daubert to extra-record evidence).
81. cf. Lobsters, Inc. v. Evans, 346 F. Supp. 2d 340, 344 (D. Mass. 2004) (distinguishing Daubert's trial context from that of administrative law).
82. Lobsters, Inc. v. Evans, 346 F. Supp. 2d 340, 344 (D. Mass. 2004).
83. Thomas O. McGarity, On the Prospect of "Daubertizing" Judicial Review of Risk Assessment, Law & Contemp. Probs., Autumn 2003, at 156. (distinguishing Daubert's trial context from that of administrative law).
84. See, e.g., Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 98 & n.11 (1983) (describing the "sheer volume" of proceedings).
85. On the dangers that too much information poses to administrative-law values, see Wendy E. Wagner, Administrative Law, Filter Failure, and Information Capture, 59 Duke L.J. 1321 (2010).
86. For a discussion of how agencies generate this science, see Cary Coglianese & Gary E. Marchant, Shifting Sands: The Limits of Science in Setting Risk Standards, 152 U. Pa. L. Rev. at 1260.
87. See generally Cary Coglianese & Gary E. Marchant, Shifting Sands: The Limits of Science in Setting Risk Standards, 152 U. Pa. L. Rev. at 1260 ("In short, EPA's use of a science-based rhetoric enabled it to avoid responsibility for providing any clear, consistent reasons for its policy choices in setting air quality standards.").
88. Emily Hammond Meazell, Scientific Avoidance: Toward More Principled Judicial Review of Legislative Science, 84 Ind. L.J. at 251 (collecting sources).
89. Daniel Sarewitz, The Rightful Place of Science, Issues in Sci. & Tech., Summer 2009, at 89 (collecting examples from early in the Obama Administration).
90. I define "policy" broadly to include courses of action selected from among alternatives in light of such factors as professional judgment, institutional and cultural norms, and external pressures.
91. Professor Wagner has illustrated similar concepts in what she has termed the "zigzag between science and science policy." Wendy E. Wagner, The "Bad Science" Fiction: Reclaiming the Debate Over the Role of Science in Public Health and Environmental Regulation, Law & Contemp. Probs., Autumn 2003, at 63, 65 [hereinafter Wagner, "Bad Science" Fiction].
92. Holly Doremus, Science Plays Defense: Natural Resource Management in the Bush Administration, 32 Ecology L.Q. at 290 ("Political choices cannot be removed from the process. Instead of trying to remove them, it would be more helpful to focus on making the political elements of these decisions more transparent.").
93. This example is based on Industrial Union Department v. American Petroleum Inst. (Benzene), 448 U.S. 607 (1980), discussed Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (Benzene), 448 U.S. 607 (1980).
94. 509 F.2d 1301, 1308 (2d Cir. 1975).
95. See Thomas O. McGarity, Our Science is Sound Science and Their Science is Junk Science: Science-Based Strategies for Avoiding Accountability and Responsibility for Risk-Producing Products and Activities, 52 U. Kan. L. Rev. 897, 932 (2004) [hereinafter McGarity, Our Science] ("[P]olicy nearly always drives the inferences that an expert draws from scientific studies.").
96. In his pathbreaking work, nuclear physicist Alvin M. Weinberg coined the term "transscience" to describe questions that, while capable of being posed in scientific terminology, "are unanswerable by science; they transcend science." Alvin M. Weinberg, Science and Trans-Science, 10 Minerva 209, 209 (1972).
97. Examples of trans-scientific questions stem from his work in the nuclear industry and include the biological effects of very low-dose contaminant exposures; the probability of extremely improbable events; the judgments that must be used to make decisions when thorough data is unavailable; and value choices between different types of science. See Alvin M. Weinberg, Science and Trans-Science, 10 Minerva at 210-13.
98. An illustration and discussion of these possible dose-response curves is set forth in Carol L. Silva & Hank C. Jenkins-Smith, The Precautionary Principle in Context: U.S. and E.U. Scientists' Prescriptions for Policy in the Face of Uncertainty, 88 Soc. Sci. Q. 640, 641 (2007).
99. Holly Doremus, Scientific and Political Integrity in Environmental Policy, 86 Tex. L. Rev. at 1624 ("Scientific integrity allows for the honest difference of opinion.").
100. See Barbara Cosens, Resolving Conflict in Non-Ideal, Complex Systems: Solutions for the Law-Science Breakdown in Environmental and Natural Resource Law, 48 Nat. Resources J. 257, 291 (2008) ("[T]his is a fundamental aspect of the scientific study of complex, non-ideal systems.").
101. For a detailed presentation of this example, see David E. Adelman, Two Models for Scientific Transparency in Environmental Law, in Rescuing Science from Politics: Regulation and the Distortion of Scientific Research, at 201-03.
102. David E. Adelman, Two Models for Scientific Transparency in Environmental Law, in Rescuing Science from Politics: Regulation and the Distortion of Scientific Research at 201.
103. For more on Bayesian analysis, see William H. Greene, Econometric Analysis 600-25 (6th ed. 2008) (presenting Bayesian techniques).
104. Andrew Gelman et al., Bayesian Data Analysis 3 (2d ed. 2004) ("The essential characteristic of Bayesian methods is their explicit use of probability for quantifying uncertainty in inferences based on statistical data analysis.").
105. David E. Adelman, Two Models for Scientific Transparency in Environmental Law, in Rescuing Science from Politics: Regulation and the Distortion of Scientific Research, at 202.
106. David E. Adelman, Two Models for Scientific Transparency in Environmental Law, in Rescuing Science from Politics: Regulation and the Distortion of Scientific Research, at 202. Ultimately, sufficient sampling and testing should make the Bayesian predictions from these two approaches converge.
107. By contrast, scholars have documented policy-driven abuses of the scientific process itself. See, e.g., Holly Doremus, Scientific and Political Integrity in Environmental Policy, 86 Tex. L. Rev. at 1609-13 (describing censorship of scientific information).
108. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. at 1640-50 (describing intentional and premeditated instances of science charade).
109. See David E. Adelman, Two Models for Scientific Transparency in Environmental Law, in Rescuing Science from Politics: Regulation and the Distortion of Scientific Research at 212 ("Careful explanation of experimental results is a fundamental principle of science.").
110. Barbara Cosens, Resolving Conflict in Non-Ideal, Complex Systems: Solutions for the Law-Science Breakdown in Environmental and Natural Resource Law, 48 Nat. Resources J. at 292 ("[L]aw, agency policy, and scientific judgment may all play a role in reaching a single decision. Separating them for the sake of transparency, as recommended by some, may not be so easily done.").
111. See Sheila Jasanoff, The Fifth Branch: Science Advisors as Policymakers, at 77 ("[R]egulatory science includes a substantial component of knowledge synthesis.") (italics omitted).
112. Mary Jane Angelo, Harnessing the Power of Science in Environmental Law: Why We Should, Why We Don't, and How We Can, 86 Tex. L. Rev. 1527, 1565 (2008) ("EPA gets most of its scientific information from outside of the agency.").
113. Thomas O. McGarity, The Complementary Roles of Common Law Courts and Federal Agencies in Producing and Using Policy-Relevant Scientific Information, 37 Envtl. L. 1027, 1028-29 (2007) ("The agencies have become repositories for huge amounts of scientific information that they may use in taking regulatory action or disseminate to the public by way of warnings or cautionary state ments.").
114. cf. J.B. Ruhl & James Salzman, In Defense of Regulatory Peer Review, 84 Wash. U. L. Rev. 1, 6 (2006) (advocating regulatory peer review for the "outside evaluation of an administrative agency's compilation, selection, or use of scientific data to support a proposed regulatory decision such as a rule, standard, permit, or other policy").
115. APA, 5 U.S.C. § 553(c) (2006) ("[T]he agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments....").
116. cf. Stephen M. Johnson, Junking the "Junk Science" Law: Reforming the Information Quality Act, 58 Admin. L. Rev. 37, 78 (2006) ("Traditionally, when an agency sets a pollution standard or takes some other action to protect health or the environment under the environmental laws, the agency relies on a broad range of scientific data and studies and describes those data and studies in the decision that supports its action.").
117. See, e.g., Endangered and Threatened Wildlife and Plants; Proposed Listing for the Largetooth Sawfish, 75 Fed. Reg. 25, 174 (proposed May 7, 2010) (requesting information "relevant to the status and conservation of the species").
118. Mandatory Reporting of Greenhouse Gases: Additional Sources of Fluorinated GHGs, 75 Fed. Reg. 18,651, 18,654 (proposed Apr. 12, 2010) (requesting comment on various issues related to fluorinated greenhouse gas emissions).
119. Mandatory Reporting of Greenhouse Gases: Injection and Geologic Sequestration of Carbon Dioxide, 75 Fed. Reg. 18,575, 18,579 (proposed Apr. 12, 2010) (seeking comment on options for monitoring, reporting, and verification of potential carbon dioxide leakage).
120. EPA, Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency 6-7 (2002), available at http://epa.gov/quality/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf [hereinafter EPA Guidelines].
121. See, e.g., Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities, 59 Fed. Reg. 34,270, 34,270 (July 1, 1994).
122. EPA Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency, at 11 (describing peer review system).
123. E.g., EPA Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency at 19.
124. see also Holly Doremus, Data Gaps in Natural Resource Management: Sniffing for Leaks Along the Information Pipeline, 83 Ind. L. J. 407 (2008) (exploring the process by which scientific and technical information is produced, expressed, transmitted, and ultimately incorporated into regulatory decisions).
125. Sheila Jasanoff, The Fifth Branch: Science Advisors as Policymakers at 77.
126. Professor Jasanoff has identified numerous differences between regulatory and research science; for a helpful summary, see Sheila Jasanoff, The Fifth Branch: Science Advisors as Policymakers at 80.
127. See Sheila Jasanoff, The Fifth Branch: Science Advisors as Policymakers at 76-80 (exploring such differences).
128. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) ("While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices....").
129. Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) ("Resolution of these fundamental policy questions lies, however, with Congress and the agencies to which Congress has delegated authority....").
130. See Chevron, 467 U.S. at 864 ("The arguments over policy that are advanced in the parties' briefs create the impression that respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency.... Such policy arguments are more properly addressed to legislators or administrators, not to judges.").
131. For a discussion of science in the courts, see Emily Hammond Meazell, Scientific Avoidance: Toward More Principled Judicial Review of Legislative Science, 84 Ind. L.J., at 252-56.
132. Sheila Jasanoff, The Fifth Branch: Science Advisors as Policymakers at 50.
133. see also Cellular Phone Taskforce v. FCC, 205 F.3d 82, 91 (2d Cir. 2000) ("The argument that the FCC should create greater safety margins in its guidelines to account for uncertain data is a policy question, not a legal one. As a policy matter, an agency confronted with scientific uncertainty has some leeway to resolve that uncertainty by means of more regulation or less.").
134. See Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J., at 1400.
135. For other accounts of this observation, see Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J., at 1400 ("[Commentators] pick apart the agencies' preambles and background documents and launch blunderbuss attacks on every detail of the legal and technical bases for the agencies' rules.").
136. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. at 1657 ("[Advocates] become single-mindedly engaged in presenting opposing scientific justifications, demanding outside scientific review, or attacking the competence of the agency's science when it leads to results that run counter to their own unexpressed policy preferences.").
137. See, e.g., Chlorine Chemistry Council v. EPA, 206 F.3d 1286 (D.C. Cir. 2000) (remanding to agency where, pursuant to Safe Drinking Water Act, EPA set maximum contaminant levels for chloroform at zero despite widespread scientific consensus that exposure thresholds had been demonstrated for chloroform).
138. For example, the leading proponents of applying the principles of Daubert v. Merrell Dow Pharmaceuticals Co., 509 U.S. 479 (1993), to judicial review of administrative science cite the following as examples of bad agency science: Flue-Cured Tobacco Cooperative Stabilization Corp. v. EPA, 4 F. Supp. 2d 435 (M.D.N.C. 1998), rev'd, 313 F.3d 852 (4th Cir. 2002).
139. Chemical Manufacturers Ass'n v. EPA, 28 F.3d 1259 (D.C. Cir. 1994).
140. and Puerto Rico Sun Oil Co. v. EPA, 8 F.3d 73 (1st Cir. 1993).
141. See Alan Charles Raul & Julie Zampa Dwyer, "Regulatory Daubert": A Proposal to Enhance Judicial Review of Agency Science by Incorporating Daubert Principles Into Administrative Law, Law & Contemp. Probs., Autumn 2003, at 7, 19-20. In only one of those, Chemical Manufacturers Ass'n, did the agency actually get the science wrong: it treated a solid molecule as if it were a gas. 28 F.3d at 1266. The other cases may be explained on the basis that the agencies did not engage in reasoned decision making-not that science was "bad.".
142. Wendy E. Wagner, The "Bad Science" Fiction: Reclaiming the Debate Over the Role of Science in Public Health and Environmental Regulation, Law & Contemp. Probs., Autumn 2003, at 72-87.
143. see also Thomas O. McGarity, Our Science is Sound Science and Their Science is Junk Science: Science-Based Strategies for Avoiding Accountability and Responsibility for Risk-Producing Products and Activities, 52 U. Kan. L. Rev., at 934 ("[T]here is little evidence that the scientific information that the agencies are currently using and disseminating is unreliable.").
144. The term is credited to Professor E. Donald Elliott, former general counsel to the EPA. See E. Donald Elliott et al., Science, Agencies, and the Courts: Is Three a Crowd?, 31 Envtl. L. Rep. 10,125, at 10,134 (2001) (comments of Thomas O. McGarity).
145. Whether judicial review actually causes ossification is hotly contested. There are many supporters of that hypothesis. E.g., Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation 49 (1993).
146. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 Tex. L. Rev., at 528 ("[T]he courts have played a prominent role in the ossification of informal rulemaking.").
147. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J., at 1419 ("The predictable result of stringent 'hard look' judicial review of complex rulemaking is ossification.").
148. Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 Admin. L. Rev. 59, 65 (1995) ("With the exception of a few agencies, the judicial branch is responsible for most of the ossification of the rulemaking process.").
149. Richard J. Pierce, Jr., Two Problems in Administrative Law: Political Polarity on the District of Columbia Circuit and Judicial Deterrence of Agency Rulemaking, 1988 Duke L.J. 300, 308-13.
150. There are also numerous detractors. See William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 Nw. U. L. Rev. 393 (2000).
151. Mark Seidenfeld, Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review, 70 Ohio St. L.J. 251 (2009).
152. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J., at 1386.
153. Empirical studies have had difficulty verifying this assertion. See Cary Coglianese, Empirical Analysis and Administrative Law, 2002 U. Ill. L. Rev. 1111, 1127-31 ("[A] retreat from rulemaking in the face of stringent judicial review is not nearly as clear as has been generally supposed.").
154. see also Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 Va. L. Rev. 889, 923, 963-64 (2008) (discussing empirical findings suggesting agencies engage in considerable notice-and-comment rulemaking and are therefore not greatly ossified).
155. William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 Nw. U. L. Rev., at 395.
156. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J., at 1400-01.
157. see also Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J. at 1401 ("The courts can also impose analytical requirements in a more direct way by reading into agency statutes analytical obligations not obvious in Congress's words.").
158. See William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 Nw. U. L. Rev. at 395.
159. See Andrew D. Siegel, The Aftermath of Baltimore Gas & Electric Co. v. NRDC: A Broader Notion of Judicial Deference to Agency Expertise, 11 Harv. Envtl. L. Rev. at 346 n.82.
160. The classic account is Professor Wagner's Science Charade, Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613 (1995).
161. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. at 1629.
162. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. at 1632.
163. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. at 1640, 1644.
164. See Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. at 1674-77.
165. Other possibilities include the public participation requirement of the APA, Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. at 1654-55, perverse incentives set up through interest group oversight.
166. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. at 1657, and science-based legislative mandates.
167. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. at 1667.
168. There has been some suggestion that agencies are punished if they make explicit that they have made policy choices in light of scientific uncertainty. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. at 1663 & n.183.
169. But in light of the super-deference principle's grounding in the Supreme Court's view that agencies are the appropriate policymaking branch-and the Baltimore Gas facts themselves, in which the agency was forthcoming about scientific uncertainty and policy-it seems that other factors may better explain remands even where agencies have been explicit. Indeed, Professor Bressman has explained the remand in State Farm as influenced by the Court's perception that the agency needed to make explicit the political factors influencing its decision. Bressman, Procedures as Politics, 107 Colum. L. Rev. at 1783 ("One message to the agency was to better cloak its politically based decisions in technical dress. Another was to reveal the political as well as the technical basis for its decisions.").
170. See Wagner, Science Charade, 95 Colum. L. Rev. at 1665-66 ("By insisting on technical justifications on the one hand and pledging not to scrutinize the accuracy of the technical explanations on the other, the courts not only fail to prevent the science charade, they make it almost obligatory.").
171. 509 U.S. 579 (1993). In Daubert, the Supreme Court held that Federal Rule of Evidence 702 requires courts to act as gatekeepers to determine whether scientific evidence is reliable and relevant. 509 U.S. 579 at 589.
172. E.g., Paul S. Miller & Bert W. Rein, "Gatekeeping" Agency Reliance on Science and Technical Materials After Daubert: Ensuring Relevance and Ability in the Administrative Process, 17 Touro L. Rev. 297, 324-27 (2000) (arguing for a Daubert executive order).
173. Information Quality Act of 2001 ("IQA"), Pub. L. No. 106-554, § 515, 114 Stat. 2763A-153-154 (2000).
174. see Stephen M. Johnson, Junking the "Junk Science" Law: Reforming the Information Quality Act, 58 Admin. L. Rev. at 41 (criticizing the IQA).
175. Wendy E. Wagner, Importing Daubert to Administrative Agencies Through the Information Quality Act, 12 J. Law & Pol'y 589, 597 (2004) (commenting that certain IQA petitions "bear a striking resemblance to Daubert motions"). Another reform targeting information disclosure is the Shelby Amendment, which requires federal agencies to make research data available to the public in certain circumstances. FY 1999 Omnibus Appropriations Act, 144 Cong. Rec. H11178 (daily ed. Oct. 19, 1998).
176. E.g., Alan Charles Raul & Julie Zampa Dwyer, "Regulatory Daubert": A Proposal to Enhance Judicial Review of Agency Science by Incorporating Daubert Principles Into Administrative Law, Law & Contemp. Probs., Autumn 2003, at 7, 19-20.
177. Merits, and criticisms, have been extensively debated in the scholarly literature. See, e.g., Wendy E. Wagner, The "Bad Science" Fiction: Reclaiming the Debate Over the Role of Science in Public Health and Environmental Regulation, Law & Contemp. Probs., Autumn 2003, at 63, 65 (criticizing reforms and questioning the premise of bad science).
178. See Stephen J. Breyer, Assoc. Justice, Supreme Court of the United States, Speech, The Interdependence of Science and Law (Feb. 16, 1998), available at http://www.aaas.org/spp/yearbook/chap9.htm (revised transcript) (courts ought to aim for decisions that "approximately reflect the scientific state of the art").
179. E.g., Alan Charles Raul & Julie Zampa Dwyer, "Regulatory Daubert": A Proposal to Enhance Judicial Review of Agency Science by Incorporating Daubert Principles Into Administrative Law, Law & Contemp. Probs., Autumn 2003, at 7 ("Daubert provides a suitable framework for reviewing the quality of agency science and the soundness of agency decisions....").
180. Paul S. Miller & Bert W. Rein, "Gatekeeping" Agency Reliance on Science and Technical Materials After Daubert: Ensuring Relevance and Ability in the Administrative Process, 17 Touro L. Rev., at 298 ("In our view, [the Daubert] principles require federal courts reviewing administrative actions to enforce the same 'gatekeeper' standards as those courts now require when reviewing a trial court's treatment of scientific and technical evidence.").
181. Alan Charles Raul & Julie Zampa Dwyer, "Regulatory Daubert": A Proposal to Enhance Judicial Review of Agency Science by Incorporating Daubert Principles Into Administrative Law, Law & Contemp. Probs., Autumn 2003, at 9.
182. See E. Donald Elliott et al., Science, Agencies, and the Courts: Is Three a Crowd?, 31 Envtl. L. Rep., at 10, 129-30 (comments of Alan Charles Raul).
183. See, e.g., Thomas O. McGarity, On the Prospect of "Daubertizing" Judicial Review of Risk Assessment, Law & Contemp. Probs., Autumn 2003, at 155.
184. Wendy E. Wagner, The "Bad Science" Fiction: Reclaiming the Debate Over the Role of Science in Public Health and Environmental Regulation, Law & Contemp. Probs., Autumn 2003, at 63, 65.
185. Courts have uniformly concluded that Daubert does not apply to judicial review of agency action, and have invoked various justifications. See, e.g., Lobsters, Inc. v. Evans, 346 F. Supp. 2d 340, 344 (D. Mass. 2004) ("Daubert and its progeny interpret the Federal Rules of Evidence, however, and the federal rules of evidence [sic] do not apply to NOAA hearings.").
186. Stewart v. Potts, 996 F. Supp. 668, 678 n.8 (S.D. Tex. 1998) ("It does not apply to APA review of agency action.... The agency in this case is the factfinder, and the Court must give a high degree of deference to its expertise.").
187. Another explanation stems from separation-of-powers values. See, e.g., Sierra Club v. Marita, 46 F.3d 606, 622 (7th Cir. 1995) ("While such a proposal might assure better documentation of an agency's scientific decisions, we think that forcing an agency to make such a showing as a general rule is intrusive, undeferential, and not required.").
188. Agencies have likewise rejected requests to use Daubert as part of their rulemakings. See Claire R. Kelly, The Dangers of Daubert Creep in the Regulatory Realm, 14 J.L. & Pol'y 165, 187-89 (2006) (collecting examples).
189. See E. Donald Elliott et al., Science, Agencies, and the Courts: Is Three a Crowd?, 31 Envtl. L. Rep. at 10,137 (comments of Richard Pierce) ("Federal judges don't know much about science. They know a lot less about science than do agencies.").
190. Thomas O. McGarity, On the Prospect of "Daubertizing" Judicial Review of Risk Assessment, Law & Contemp. Probs., Autumn 2003, at 156 ("Judges' limited competence in areas involving scientific data and analysis, complex modeling exercises, and large uncertainties is well recognized in administrative law and has been effectively demonstrated by the courts themselves in post-Daubert toxic torts opinions.").
191. Wendy E. Wagner, The "Bad Science" Fiction: Reclaiming the Debate Over the Role of Science in Public Health and Environmental Regulation, Law & Contemp. Probs., Autumn 2003, at 97 ("[I]f the courts' scientific competency is less than that of the party they are reviewing, it is unclear what the courts are contributing to the exercise.").
192. See Thomas O. McGarity, On the Prospect of "Daubertizing" Judicial Review of Risk Assessment, Law & Contemp. Probs., Autumn 2003, at 156 ("Assigning a Daubert-like gatekeeper role to courts engaged in judicial review of agency risk assessments is a profoundly bad idea.").
193. See, e.g., Pasha v. Gonzales, 433 F.3d 530, 535 (7th Cir. 2005) (concluding expert should not have been permitted to testify).
194. Rodriguez Galicia v. Gonzales, 422 F.3d 529, 539 (7th Cir. 2005) (invoking "spirit" to reason that nothing in experts' curricula vitae indicated that they were unqualified).
195. Niam v. Ascroft, 354 F.3d 652, 660 (7th Cir. 2004) ("[T]he spirit of Daubert... does apply to administrative proceedings.... 'Junk science' has no more place in administrative proceedings that in judicial ones.").
196. Peabody Coal Co. v. McCandless, 255 F.3d 465, 469 (7th Cir. 2001) ("An agency must act like an expert if it expects the judiciary to treat it as one.").
197. See, e.g., McElmurray v. U.S. Dep't of Agric., 535 F. Supp. 2d 1318, 1325 (S.D. Ga. 2008) ("While Daubert does not apply to agency decisions in any formal respect, the principles underlying that decision do apply."(citing Pasha, 433 F.3d at 535)).
198. See Claire R. Kelly, The Dangers of Daubert Creep in the Regulatory Realm, 14 J.L. & Pol'y 165, 187-89 (2006).
199. See Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90 (2d Cir. 2000)
200. (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983)).
201. Paul S. Miller & Bert W. Rein, "Gatekeeping" Agency Reliance on Science and Technical Materials After Daubert: Ensuring Relevance and Ability in the Administrative Process, 17 Touro L. Rev. at 316-18 (citing Cellular Phone Taskforce for proposition that courts are implicitly applying a Daubert review model).
202. see also U.S. Steel Mining Co. v. Dir., Office of Workers' Comp. Programs, 187 F.3d 384, 388-89 (4th Cir. 1999) (finding in 5 U.S.C. § 556(d) support for the proposition that ALJs must perform "a gate keeping function while assessing evidence to decide the merits of a claim").
203. See generally Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471 (2005) (so concluding).
204. For a detailed account of administrative law beginning in the 1800s, see Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189 (1986);w
205. see also Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. at 1758-67 (describing progression of eras in administrative law).
206. Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1975) (providing a descriptive and a critical historical account).
207. See Lochner v. New York, 198 U.S. 45 (1905).
208. For a detailed historical account of ratemaking, its interplay with the Lochner era, and its ultimate demise in what I consider to be a super-deference predicate case, Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944).
209. see Steven Siegel, Understanding the Lochner Era: Lessons from the Controversy Over Railroad and Utility Rate Regulation, 70 Va. L. Rev. 187 (1984).
210. Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. at 1759.
211. see also Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. at 1678.
212. Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. at 1266-67.
213. For example, the Hope Natural Gas Court explained its deferential approach: It is not the theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end. The fact that the method employed to reach that result may contain infirmities is not then important. Moreover, the Commission's order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. 320 U.S. at 602.
214. The Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1592 (codified as amended at 29 U.S.C. §§ 651-678 (2006)).
215. Consumer Product Safety Act of 1972, Pub. L. No. 92-573, 86 Stat. 1207 (codified as amended at 15 U.S.C. § 2051-84 (2006)).
216. Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (codified as amended at 42 U.S.C. §§ 7401-7671q (2006)).
217. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§ 1251-1387 (2006)).
218. National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified at 42 U.S.C. §§ 4321-4370f (2006)).
219. J. Skelly Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L. Rev. 375, 375 (1974).
220. see also McGarity, Deossifying, 41 Duke L.J. at 1385 (calling 1970s "rulemaking era"). This change was also facilitated by the Supreme Court's opinion in United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973), which established a presumption against formal rulemaking.
221. Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. at 1311.
222. see also Int'l Harvester Co. v. Ruckelshaus, 478 F.2d 615, 648 (D.C. Cir. 1973) ("It is in this perspective that we have not flinched from our discussion of the economic and ecological risks inherent in a 'wrong decision' by the Administrator.").
223. Note that the industry capture model of agency behavior also gained ground during this period, raising skepticism about agencies' abilities to regulate solely in the public interest. See Roger G. Noll, Reforming Regulation: An Evaluation of the Ash Council Proposals 40-43 (1971).
224. See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. at 1309 ("[T]he courts were centrally concerned with the question of how to control effectively the exercise of administrative discretion in the singularly perplexing cases of scientific and technological complexity. Deference to traditional processes of informal rulemaking and adjudication in such cases appeared to be tantamount to surrendering the function of judicial review.").
225. Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. at 1307. Note how the modern Daubertization debate echoes these themes. 509 U.S. 579 (1993).
226. Thomas O. McGarity, On the Prospect of "Daubertizing" Judicial Review of Risk Assessment, Law & Contemp. Probs., Autumn 2003, at 156.
227. 478 F.2d 615.
228. 478 F.2d at 645, 647.
229. 478 F.2d at 651 (Bazelon, C.J., concurring) ("I recognize that I do not know enough about dynamometer extrapolations, deterioration factor adjustments, and the like to decide whether or not the government's approach to these matters was statistically valid. Therein lies my disagreement with the majority.").
230. 478 F.2d at 651.
231. See Clark Byse, Comment, Vermont Yankee and the Evolution of Administrative Procedure: A Somewhat Different View, 91 Harv. L. Rev. 1823, 1823 (1978) (calling hybrid rulemaking an "unwholesome trend").
232. 435 U.S. 519 (1978).
233. See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. at 1309 (calling Vermont Yankee "[t]he key case that questioned an expansive conception of judicial review" that had arisen in this era).
234. Vermont Yankee, 435 U.S. 519.
235. In a second decision also before the Supreme Court in Vermont Yankee, the D.C. Circuit had remanded a decision of the NRC to grant a permit to construct another plant to Consumers Power Company. Aeschliman v. NRC, 547 F.2d 622 (1976).
236. Natural Res. Def. Council, Inc. v. NRC, 547 F.2d 633, 653 (D.C. Cir. 1976), rev'd sub nom.
237. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc. 435 U.S. 519 (1978).
238. Natural Res. Def. Council, Inc. v. NRC, 547 F.2d at 654.
239. Vermont Yankee, 435 U.S. at 524-25.
240. (citing FCC v. Schreiber, 381 U.S. 279, 290 (1965).
241. Vermont Yankee, 435 U.S. at 525.
242. Indeed, the Court cited its opinion in SEC v. Chenery, 332 U.S. 194, 196 (1947), for the proposition that allowing court-imposed procedures would "propel the court into the domain which Congress has set aside exclusively for the administrative agency.".
243. 435 U.S. at 545.
244. 435 U.S. at 548.
245. 435 U.S. at 546-47.
246. See Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 92-95 (1983) (describing history).
247. Note that Vermont Yankee and Baltimore Gas were part of a broader progression toward great deference that ushered in the presidential era of administrative law. See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246-49 (2001).
248. As exemplified by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), this model grounds administrative law in the president's accountability and constitutional policymaking role.
249. See Bressman, Procedures as Politics, 107 Colum. L. Rev. at 1764 (describing presidential control model of administrative law as reflected by increasing judicial deference to agency decisions, the most prominent example being Chevron). Taken together, these cases represent a Court growing more willing to once again revert to deference to agencies on matters within their expertise.
250. 462 U.S. at 89-90.
251. 462 U.S. at 89-90.
252. 462 U.S. at 92.
253. 462 U.S. at 94.
254. 462 U.S. at 94-95. The agency also rejected the option of having licensing boards reconsider those uncertainties in individual licensing proceedings, explaining that this was a generic question properly dealt with in rulemaking. 462 U.S. at 95-96.
255. 462 U.S. at 94-95.
256. 462 U.S. at 94-95.
257. 462 U.S. at 96.
258. 462 U.S. at 101-02.
259. 462 U.S. at 102-03.
260. 462 U.S. at 103.
261. 462 U.S. at 105.
262. 462 U.S. at 97 (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978)).
263. 462 U.S. at 105-06 (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974).
264. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).
265. 462 U.S. at 101-03.
266. Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (Benzene), 448 U.S. 607 (1980) plurality opinion).
267. There are numerous criticisms of the case. See, e.g., Wagner, "Bad Science" Fiction, Law & Contemp. Probs., Autumn 2003, at 119 n.245 (collecting opinions that have cited Benzene for raising the burden of proof beyond what may be called for in statutory mandates).
268. E. Donald Elliott et al., Science, Agencies, and the Courts: Is Three a Crowd?, 31 Envtl. L. Rep. at 10,137 (comments of Richard J. Pierce, Jr.) ("Anyone who has had Toxicology 101, even if they got a D in it, can see that the risk that the [Benzene] court calls trivial is much larger than the risk the court calls plainly unacceptable. I don't want fools like that messing around with science, and that's the best of our judiciary.").
269. 448 U.S. at 634.
270. 448 U.S. at 690 (Marshall, J., dissenting).
271. see also 448 U.S. at 662 (Burger, C.J., concurring) ("These cases press upon the Court difficult unanswered questions on the frontiers of science and medicine.").
272. 448 U.S. at 705 (Marshall, J., dissenting).
273. 448 U.S. at 705-06.
274. 448 U.S. at 706;
275. 448 U.S. at 693 ("[T]he requirement that the Secretary act on the basis of 'the best available evidence' was intended to ensure that the standard-setting process would not be destroyed by the uncertainty of scientific views.").
276. 448 U.S. at 656.
277. Industrial Union v. Hodgson, 499 F.2d 467, 476 (D.C. Cir. 1974).
278. see Industrial Union v. Hodgson, 499 F.2d at 474 ("[S]ome of the questions involved in the promulgation of these standards are on the frontiers of scientific knowledge.... Decision making must in that circumstance depend to a greater extent upon policy judgments and less upon purely factual analysis.").
279. 509 F.2d 1301, 1308 (2d Cir. 1975).
280. See Comment, The Emerging Jurisprudence of Justice O'Connor, 52 U. Chi. L. Rev. 389, 409 n.81 (1985) (commenting that Justice O'Connor's restraint in Baltimore Gas was consistent with her opposition to the judiciary's undertaking scientific judgment in abortion cases).
281. See Andrew D. Siegel, The Aftermath of Baltimore Gas & Electric Co. v. NRDC: A Broader Notion of Judicial Deference to Agency Expertise, 11 Harv. Envtl. L. Rev. at 362 (arguing that the years immediately following Baltimore Gas saw a trend illustrating "the courts' general unwillingness to exercise a significant role in overseeing the operation of the nuclear power industry").
282. Joel Yellin, Science, Technology, and Administrative Government: Institutional Designs for Environmental Decisionmaking, 92 Yale L.J. at 1320 n.128 (calling Baltimore Gas cases "shadow versions of the debate about the legitimacy and long-term viability of the commercial nuclear power industry in which the courts have no institutional role").
283. Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983).
284. Joel Yellin, Science, Technology, and Administrative Government: Institutional Designs for Environmental Decisionmaking, 92 Yale L.J. at 1323 (citation omitted).
285. see also Paul Weinstein, Note, Substantive Review Under NEPA After Vermont Yankee IV, 36 Syracuse L. Rev. 837, 879 (1985) (confining super-deference language to the case's facts and noting that "it entailed a decision by the NRC on whether that agency would continue to carry on a major function long committed to it-the decision of whether to continue to license nuclear reactors").
286. See Andrew D. Siegel, The Aftermath of Baltimore Gas & Electric Co. v. NRDC: A Broader Notion of Judicial Deference to Agency Expertise, 11 Harv. Envtl. L. Rev. at 346 n.82 (arguing Baltimore Gas's reference to the "sheer volume" of proceedings improperly suggested an agency can comply with statutory requirements merely by amassing paper).
287. Andrew D. Siegel, The Aftermath of Baltimore Gas & Electric Co. v. NRDC: A Broader Notion of Judicial Deference to Agency Expertise, 11 Harv. Envtl. L. Rev. at 377 ("One possible result of the deference rule is that agencies will strain to characterize their policy decisions, especially if they are controversial, as resting on technical or scientific judgments.").
288. Joel Yellin, Science, Technology, and Administrative Government: Institutional Designs for Environmental Decisionmaking, 92 Yale L.J. at 1317-18 ("It remains to be seen whether as agencies grow more sophisticated in facing reviewing courts, they defeat the adaptive process, increasing their discretionary powers by drawing more of the real substance of decisions into a realm that plausibly can be described as the scientific and technological frontier.").
289. see also Donald W. Stever, Jr., Deference to Administrative Agencies in Federal Environmental, Health, and Safety Litigation- Thoughts on Varying Judicial Application of the Rule, 6 W. New Eng. L. Rev. at 68-69 (articulating two concerns about super deference: a "potential for the development of a tyranny by bureaucrat-technicians in the absence of strong minded judicial review," and the possibility that nontechnical bases for decisions may be "obscured by agency lawyers who cloak the regulation in scientific or technical buzzwords").
290. See generally Andrew D. Siegel, The Aftermath of Baltimore Gas & Electric Co. v. NRDC: A Broader Notion of Judicial Deference to Agency Expertise, 11 Harv. Envtl. L. Rev. at 361-72 (describing opinions issued between 1983 and 1986 citing the super-deference principle).
291. 490 U.S. 360 (1989).
292. 490 U.S. at 378-79.
293. Turbidity is a measure of the light that is reflected by material in water; it is an indirect measure of the amount of suspended matter in the water. See 490 U.S. at 364 n.2.
294. 490 U.S. at 366-67.
295. 490 U.S. at 370.
296. 490 U.S. at 376.
297. 490 U.S. at 377 (citing Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)).
298. 490 U.S. at 378 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)).
299. 490 U.S. at 378.
300. 490 U.S. at 382-85.
301. 490 U.S. at 385.
302. See, e.g., Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376-78 (2008) (upholding the Navy's use of mid-frequency active sonar in training exercises against a challenge that such sonar harmed marine mammals).
303. Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 496-501 (2004) (upholding, under § 706(2)(A), the EPA's stop-construction orders where the agency concluded that the state permitting authority made unreasonable determinations under the Clean Air Act).
304. cf. Dickinson v. Zurko, 527 U.S. 150, 165 (1999) (holding the substantial evidence standard applies on judicial review of Patent and Trademark Office findings; rejecting, inter alia, the argument that a stricter clearly erroneous standard would encourage better-developed administrative records).
305. The Supreme Court has infrequently cited Baltimore Gas for the proposition that NEPA assures the public that an agency has considered environmental impacts. E.g., Dep't of Transp. v. Public Citizen, 541 U.S. 752, 768 (2004) (holding that an agency is not bound by NEPA).
306. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (holding that the agency complied with NEPA's mandate).
307. See generally Emily Hammond Meazell, Scientific Avoidance: Toward More Principled Judicial Review of Legislative Science, 84 Ind. L.J. 239 (2009) (exploring this approach of "scientific avoidance" with respect to legislative science).
308. Ohio v. NRC, 814 F.2d 258, 264 (6th Cir. 1987).
309. see also Massachusetts v. NRC, 924 F.2d 311, 324 (D.C. Cir. 1991) ("[T]he Commission's licensing decisions are generally entitled to the highest judicial deference because of the unusually broad authority that Congress delegated to the agency under the Atomic Energy Act.").
310. Ohio v. NRC, 868 F.2d 810, 812 (6th Cir. 1989) ("Congress has recognized the highly technical nature of such regulations and has accordingly circumscribed the power of the courts both to review and to overturn decisions made by the NRC.") (citing Baltimore Gas's super-deference principle).
311. Siegel v. Atomic Energy Comm'n, 400 F.2d 778, 783 (D.C. Cir. 1968) (noting the Atomic Energy Act of 1954 creates "a regulatory scheme which is virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives").
312. cf. Citizens Awareness Network, Inc. v. NRC, 59 F.3d 284 (1st Cir. 1995) (holding arbitrary and capricious the NRC's unexplained change in decommissioning policy, which was contrary to the agency's own regulations).
313. 742 F.2d 1546 (D.C. Cir. 1984).
314. Carstens, 742 F.2d at 1548-49.
315. Carstens, 742 F.2d at 1550-51.
316. Carstens, 742 F.2d at 1551.
317. Carstens, (quoting Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)).
318. Carstens
319. Carstens at 1555.
320. Carstens at 1555.
321. Carstens at 1555.
322. Carstens at 1556.
323. Carstens Standard deviation measures the dispersion of sample observations.
324. William H. Greene, Econometric Analysis at 1020. The mean-plus-one standard deviation would have produced a more precautionary design assumption.
325. 742 F.2d at 1556.
326. 742 F.2d at 1557.
327. 742 F.2d at 1557.
328. But see Andrew D. Siegel, The Aftermath of Baltimore Gas & Electric Co. v. NRDC: A Broader Notion of Judicial Deference to Agency Expertise, 11 Harv. Envtl. L. Rev. at 366 (arguing Carstens demonstrates judicial willingness to mechanically apply super deference, particularly in nuclear power decisions).
329. Numerous other nuclear power opinions, many coming closely on the heels of Baltimore Gas, are similar to Carstens in their approaches and outcomes. E.g., Citizens for Fair Util. Regulation v. NRC, 898 F.2d 51, 54 (5th Cir. 1990) (citing Baltimore Gas for the general proposition of deference and upholding the NRC's denial of a petition to intervene in a nuclear power plant licensing proceeding).
330. Envtl. Def. Fund v. NRC, 902 F.2d 785, 788-89 (10th Cir. 1990) (citing the Baltimore Gas super-deference principle in the Chevron context with respect to a regulation of uranium and thorium mill tailings).
331. Ohio v. NRC, 868 F.2d 810, 818-19 (6th Cir. 1989) (upholding the denial of a hearing to revoke a power plant's operating license because of challenges to its emergency preparedness plan; the NRC did not act arbitrarily where it found that adequate measures were in place should an emergency arise).
332. Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987) (rejecting a challenge to the NRC's denial of a motion to intervene and reopen proceedings; would-be intervenors challenged the sufficiency of a nuclear power plant design in light of an earthquake that occurred in the plant's vicinity, but, the possibility of an earthquake had been considered in the plant design and the NRC did not act arbitrarily in refusing to reopen proceedings).
333. Lorion v. NRC, 785 F.2d 1038, 1043 (D.C. Cir. 1986) (declining the invitation to reverse the NRC's substantive decision regarding the susceptibility of reactor vessels to pressurized thermal shock and explaining that the issue falls squarely within Baltimore Gas).
334. Aamodt v. NRC (In re Three Mile Island Alert, Inc.), 771 F.2d 720 (3d Cir. 1985) (upholding the decision to reopen a nuclear power plant following an accident).
335. see also Massachusetts v. NRC, 924 F.2d 311, 324 (D.C. Cir. 1991) (acknowledging distinctions, but illustrating that there is little practical difference between Baltimore Gas super deference accorded to the agencies' interpretations of their own regulations and "the heightened deference for NRC licensing decisions that flows from its broad statutory mandate").
336. 719 F.2d 1159 (D.C. Cir. 1983).
337. Ruckelshaus, 719 F.2d at 1161-62.
338. Ruckelshaus, 719 F.2d at 1167.
339. In other words, the preproduction tests took place in controlled laboratory conditions, Ruckelshaus at 1161, whereas the short tests were conducted under real-world, ambient conditions.
340. The petitioners argued this difference was inconsistent with good engineering practices because it made the tests impossible to correlate. Ruckelshausat at 1167.
341. Ruckelshausat at 1167
342. Ruckelshausat at 1167
343. Ruckelshausat at 1167.
344. (citing Balt. Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)).
345. Ruckelshausat at 1167. (describing agency's use of cutpoints as "a reasonable accommodation of the conflicting interests").
346. Ruckelshausat at 1167
347. Numerous other opinions, likewise involving little analysis, were issued shortly after Baltimore Gas. See, e.g., Am. Petroleum Inst. v. EPA, 858 F.2d 261, 264 n.3 (5th Cir. 1988) (citing Baltimore Gas amongst list of deferential citations in support of upholding, following remand, the EPA's best available technology determination pursuant to the CWA).
348. Nat'l Wildlife Fed'n v. Hodel, 839 F.2d 694, 761 & n.107 (D.C. Cir. 1988) (citing Baltimore Gas and upholding agency regulation related to top soil storage pursuant to the Surface Mining Control and Reclamation Act, where the agency made a reasoned decision relevant to "highly technical issue").
349. Natural Res. Def. Council, Inc. v. EPA, 863 F.2d 1420, 1430 (9th Cir. 1988) ("Here we deal with issues not of fact or law but of scientific measurement. In assessing difficult issues of scientific method and laboratory procedure, we must defer to a great extent to the expertise of the EPA." (citing Baltimore Gas)).
350. New York v. EPA, 852 F.2d 574, 580-81 (D.C. Cir. 1988) (citing super deference to support upholding the agency's interpretations of scientific evidence underpinning the denial of state petitions to reevaluate CAA implementation plants).
351. Michigan v. Thomas, 805 F.2d 176, 182-83 (6th Cir. 1986) (citing the super-deference principle and upholding the EPA's disapproval of the state's proposed rules to control fugitive dust emissions).
352. Hawaiian Electric Co. v. EPA, 723 F.2d 1440, 1446 (9th Cir. 1984) (citing the super-deference principle to support upholding the agency's reliance on its modeling techniques for Clean Air Act permitting).
353. But see Found. on Econ. Trends v. Heckler, 756 F.2d 143 (D.C. Cir. 1985) (relying not on super deference but on Baltimore Gas's more general language describing the role of NEPA in ensuring that an agency has taken a "hard look" at environmental consequences to uphold injunction on experiment using release of genetically altered bacteria).
354. 54 F.3d 789 (D.C. Cir. 1995).
355. Pub. L. No. 102-4, § 2(a)(1), 105 Stat. 11 (1991) (codified as amended at 38 U.S. § 1116 (2006)).
356. Am. Legion v. Derwinski, 827 F. Supp. 805, 807 (D.D.C. 1993), aff'd, 54 F.3d 789 (D.C. Cir. 1995).
357. 54 F.3d at 794.
358. 54 F.3d at 795.
359. 54 F.3d at 799.
360. 54 F.3d at 801. On this same point, the district court had opined, "At the heart of plaintiffs' arguments, however, is a challenge to the scientific merit of the CDC's research rather than the rationality of its conclusion.... [T]he Court finds that the CDC's methodology and research exhibit reasoned decisionmaking...." 827 F. Supp. at 813.
361. 827 F. Supp. at 813.
362. 54 F.3d at 801.
363. For opinions illustrating similar approaches, see Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 110 (1st Cir. 1997). (providing examples of this development).
364. For opinions illustrating similar approaches, see, for example, Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 110 (1st Cir. 1997) (brief analysis following description of facts; upholding agency action under Magnuson Act).
365. Henley v. FDA, 77 F.3d 616, 620-21 (2d Cir. 1996) (citing Baltimore Gas along with State Farm, but providing more discussion of evidence supporting petitioner's and the FDA's positions with respect to labeling of oral contraceptives).
366. and compare Harris v. United States, 19 F.3d 1090, 1096 n.8 (5th Cir. 1994) (describing the scientific evidence for both sides but upholding FWS delineation of wetlands).
367. An occasional early case took this approach. See, e.g., New Mexico v. HUD, No. 84-2347, 1987 WL 109007, at *2-3 (10th Cir. Jan. 7, 1987) (unpublished opinion) (citing both State Farm and Baltimore Gas super deference and upholding safety standards for formaldehyde levels in manufactured housing).
368. These observations belie one Baltimore Gas observer's early prediction that State Farm ought to be viewed as a specialized exception to Baltimore Gas: "In review of administrative environmental determinations, the Baltimore Gas standard clearly dominates." Andrew D. Siegel, The Aftermath of Baltimore Gas & Electric Co. v. NRDC: A Broader Notion of Judicial Deference to Agency Expertise, 11 Harv. Envtl. L. Rev. at 375.
369. 452 F.3d 930 (D.C. Cir. 2006).
370. As the court explained, coke is "cooked" coal. Am. Coke & Coal Chems., 452 F.3d at 933 n.2.
371. The court defined the various pollutants at issue, which included naphthalene, a primary ingredient in mothballs. Am. Coke & Coal Chems. at 933 n.4.
372. Am. Coke & Coal Chems. at 935.
373. Am. Coke & Coal Chems. at 935.
374. Am. Coke & Coal Chems. at 935. & n.10.
375. Am. Coke & Coal Chems. at 941-42 ("The court owes particular deference to EPA when its rulemakings rest upon matters of scientific and statistical judgment within the agency's sphere of special competence and statutory jurisdiction.").
376. Am. Coke & Coal Chems. at 942-43.
377. Am. Coke & Coal Chems. at 943.
378. Am. Coke & Coal Chems. at 943-48.
379. 571 F.3d 20 (D.C. Cir. 2009).
380. In the popular media, "fine particular matter" is often called "soot." See, e.g. Jane Kay, EPA Ignores Advice for Annual Limits on Tiny Soot: Science Panel Had Urged Tighter Rules, Citing Health Effects, S.F. Chron., Sept. 22, 2006, at A3.
381. As the court explained, the size of the particulate matter being regulated was 2.5 micrometers or smaller, "less than one-thirtieth the thickness of a human hair." Catawba Cnty., 571 F.3d at 26.
382. 571 F.3d at 40.
383. Note that the court applies the same standard of review for arbitrary and capriciousness under the Clean Air Act as under the APA. Catawba Cnty. at 41.
384. 571 F.3d at 41 (second alteration in original) (internal quotation marks omitted).
385. Catawba Cnty. at 44.
386. The term "bituminous" refers to a classification reflecting the amount of carbon in coal. See Coal Explained, U.S. Energy Info. Admin., http://www.eia.doe.gov/energyexplained/index.cfm?page=coal_home (last updated Jan. 26, 2010). Bituminous coal is the most abundant type of coal in the United States.
387. Coal Explained, U.S. Energy Info. Admin., http://www.eia.doe.gov/energyexplained/index.cfm?page=coal_home (last updated Jan. 26, 2010).
388. 571 F.3d at 45.
389. 571 F.3d at 45.
390. 571 F.3d at 45.
391. 571 F.3d at 45.
392. 571 F.3d at 45.
393. (quoting Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1007 (D.C. Cir. 1997)).
394. 571 F.3d at 45-46. Although the court upheld the rulemaking generally, it did remand the designation applied to a single New York county because that county was designated as a nonattainment area, even though similarly situated counties in a different region were designated attainment areas. 241. 571 F.3d at 51.
395. 571 F.3d at 51.
396. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
397. 571 F.3d at 50 (quoting 463 U.S. at 43).
398. 571 F.3d at 52 (quoting 463 U.S. at 43).
399. 571 F.3d at 52 (quoting 463 U.S. at 43).
400. 536 F.3d 376, 377 (5th Cir. 2008).
401. Hayward, 536 F.3d at 377 (quoting 42 U.S.C. § 7384n(b) (2006)).
402. Hayward at 378.
403. The program uses dose-response data from the Japanese atomic-bombsurvivor cohort, coupled with an employee-specific dose reconstruction. Hayward at 378.
404. Hayward at 378.
405. Hayward at 378.
406. Hayward at 379.
407. Hayward at 379.
408. Hayward at 379.
409. Hayward at 379. (describing the procedural background and standard of review).
410. Hayward at 380
411. (quoting Gulf Restoration Network v. U.S. Dep't of Transp., 452 F.3d 362, 368 (5th Cir. 2006)).
412. This statement is traceable to the 1983 decision Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897 (5th Cir. 1983), which borrowed language from Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (en banc).
413. Interestingly, Ethyl Corp. is frequently cited as an example of the trend of examining agencies' records in great detail.E.g., Reuel E. Schiller, Rulemaking's Promise: Administrative Law and Legal Culture in the 1960s and 1970s, 53 Admin. L. Rev. 1139, 1160 n.112 (2001).
414. see also Ronald J. Krotoszynski, Jr., The Bazelon-Leventhal Debate and the Continuing Relevance of the Process/Substance, 58 Admin. L. Rev. 995, 997 (2006) (citing Ethyl Corp. as example of process/substance debate).
415. 536 F.3d at 381.
416. 536 F.3d at 381.
417. The court explained the agency's reasoning both with technical terminology, and "in other words," using an alternative, perhaps more accessible, explanation. 536 F.3d at 381
418. 536 F.3d at 381-82.
419. For but one example of an ordinary hard-look case doing the same thing, see Kennecott Greens Creek Mining Co. v. Mine Safety & Health Admin., 476 F.3d 946 (D.C. Cir. 2007) (upholding mine safety standards for exposure to diesel particulate matter).
420. See, e.g., Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009) (citing both State Farm and Baltimore Gas and upholding issuance of Clean Water Act permits).
421. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d at 201, 205 (using Baltimore Gas in analysis).
422. Utah Envtl. Cong. v. Russell, 518 F.3d 817, 823-24 (10th Cir. 2008) (citing Marsh's Baltimore Gas quotation of super deference along with State Farm factors, describing the evidence, and upholding the forest management plan).
423. Citizens Coal Council v. EPA, 447 F.3d 879, 890 (6th Cir. 2006) (en banc) (citing State Farm and Baltimore Gas super deference in recitation of standards and upholding the EPA's Clean Water Act effluent limitations for coal-mining activities with thorough analysis).
424. Am. Rivers, Inc. v. U.S. Army Corps of Eng'rs (In re Operation of Mo. River Sys. Litig.), 421 F.3d 618, 628 (8th Cir. 2005) (citing State Farm and Marsh in recitation of standards, discussing each contention, and upholding federal management of Missouri River).
425. Envtl. Def. v. EPA, 369 F.3d 193, 204-05 (2d Cir. 2004) (citing both State Farm and Baltimore Gas in analysis and upholding the EPA's approval of state implementation plan under the Clean Air Act).
426. cf. Tuscon Herpetological Soc'y v. Salazar, 566 F.3d 870, 878-80 (9th Cir. 2009) (citing State Farm, comparing Baltimore Gas, and discussing in detail and holding arbitrary and capricious the agency's reliance on "ambiguous" evidence regarding lizard population to withdraw proposed threatened listing).
427. Even recent nuclear-related opinions are consistent with this trend. See, e.g., Morris v. NRC, 598 F.3d 677 (10th Cir. 2010) (upholding agency's approval of uranium mining).
428. 566 F.3d 1257 (11th Cir. 2009).
429. The court used colorful language in its description of the history of the "river of grass," whose water people had attempted to "bend" and "tame." Miccosukee Tribe, 566 F.3d at 1261.
430. Miccosukee Tribe, 566 F.3d at 1262-64. As the court noted, the dispute "pit[ted] a sparrow against a hawk.".
431. Miccosukee Tribe, 566 F.3d at 1262.
432. Miccosukee Tribe, 566 F.3d at 1265.
433. Miccosukee Tribe, 566 F.3d at 1264.
434. Miccosukee Tribe, 566 F.3d at 1269.
435. Miccosukee Tribe, 566 F.3d at 1269-70.
436. Miccosukee Tribe, 566 F.3d at 1270 ("Evidently the Service is under the impression that flooding twenty percent of the kites' critical habitat to a depth that kills the woody vegetation the bird likes to perch on, that drives off the apple snails it likes to eat, and that reduces its nesting success is not 'adverse modification' of critical habitat within the meaning of the Act.").
437. Miccosukee Tribe, 566 F.3d at 1270
438. Miccosukee Tribe, 566 F.3d at 1270
439. Miccosukee Tribe, 566 F.3d at 1270
440. Miccosukee Tribe, 566 F.3d at 1270
441. Courts persist in this approach. See, e.g., AES Sparrows Point LNG, L.L.C. v. Wilson, 589 F.3d 721, 733 (4th Cir. 2009) (citing the super-deference standard as boilerplate and upholding the denial of Clean Water Act permit on substantive grounds).
442. Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 689 F. Supp. 2d 891, 895 (W.D. Ky. 2010) (citing Baltimore Gas's super-deference principle as well as State Farm in recitation of standards, with no mention in the actual analysis).
443. cf. San Luis & Delta-Mendota Water Auth. v. Salazar, 693 F. Supp. 2d 1145, 1151 (E.D. Cal. 2010) (citing Baltimore Gas in standards section in conjunction with best science standard for biological opinions).
444. See, e.g., Chad M. Oldfather, Writing, Cognition, and the Nature of the Judicial Function, 96 Geo. L.J. 1283, 1317 (2008).
445. See Jeremy Munday, Introducing Translation Studies 63 (2d ed. 2008) (setting forth cognitive process of translation, including reading and understanding the source text, deverbalizing, and reexpressing the sense of the source text in the target language).
446. A traditional theoretical perspective views this process as akin to interpretation. See Gregory Clark, Ethics in Technical Communication: A Rhetorical Perspective, 30 IEEE Transactions on Prof. Comm. 190, 191 (1987) ("[T]his perspective describes a person who communicates technical information functioning as an interpreter....").
447. Further, the translation hypothesis opens the way for judicial opinions to be considered in light of their ethical implications. See Gregory Clark, Ethics in Technical Communication: A Rhetorical Perspective, 30 IEEE Transactions on Prof. Comm. 190 (1987) (describing various models of ethics in technical communication and suggesting a collaborative perspective aided by research in rhetoric).
448. A classic account may be found in Kenneth Burke, A Rhetoric of Motives (Univ. of Cal. Press 1969) (1962).
449. See, e.g., Kenneth Burke, A Rhetoric of Motives at 55 ("You persuade a man only insofar as you can talk his language by speech, gesture, tonality, order, image, attitude, idea, identifying your ways with his.").
450. see also Gregory Clark, Ethics in Technical Communication: A Rhetorical Perspective, 30 IEEE Transactions on Prof. Comm. at 194 (arguing technical communication ought to be judged by its ability to facilitate a common understanding between communicators and their audiences, "including an understanding of problems, conclusions, consequences, and implications").
451. E.g., Catawba County v. EPA, 571 F.3d 20, 26 (D.C. Cir. 2009) (describing the size of particulate matter at issue as 1/30th the thickness of human hair). This same analogy appeared in the final rule being challenged under the heading, "What are Fine Particles?".
452. See Designations of Areas for Air Quality Planning Purposes, 40 C.F.R. § 81 (2009).
453. Following the issuance of the court's opinion, the Bloomberg News Service also borrowed the human-hair analogy. Cary O'Reilly, EPA Air-Pollution Rules on Soot Upheld on Appeal (Update 1), Bloomberg (July 7, 2009), http://www.bloomberg.com/apps/news?pid=newsarchive&sid=ai7oYjEiOcuk.
454. Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257 (11th Cir. 2009), is full of metaphors.
455. Catawba County v. EPA, 571 F.3d at 1261 (describing the Everglades as a "river of grass," and speaking of "tam[ing] the Everglades" and "bend[ing] the water").
456. Catawba County v. EPA, 571 F.3d at 1265 (noting the party's arguments "do not hold water").
457. E.g., Am. Coke & Coal Chems. Inst. v. EPA, 452 F.3d 930, 933 n.2 (D.C. Cir. 2006) (defining coke as "cooked" coal).
458. Am. Coke & Coal Chems. Inst. v. EPA, 452 F.3d at 933 n.4 (defining pollutants at issue and including everyday example that naphthalene is the primary ingredient in mothballs).
459. E.g., Miccosukee Tribe, 566 F.3d at 1270.
460. Hayward v. U.S. Dep't of Labor, 536 F.3d 376, 381 (5th Cir. 2008).
461. These have long been recognized both as helpful tools in communicating scientific and technical information and as inescapable components of scientific rhetoric. See, e.g., Michael Alley, The Craft of Scientific Writing 115 (3d ed., Springer 1996) ("Two of the best tools for explaining unfamiliar concepts are examples and analogies.").
462. S. Michael Halloran & Annette Norris Bradford, Figures of Speech in the Rhetoric of Science and Technology, in Essays on Classical Rhetoric and Modern Discourse 179, 183-88 (Robert J. Connors et al. eds., 1984) (providing examples demonstrating the communicative strength of figures of speech)
463. Larry D. Yore et al., Written Discourse in Scientific Communities: A conversation with two scientists about their views of science, use of language, role of writing in doing science, and compatibility between their epistemic views and language, 28 Int'l J. of Sci. Educ. 109, 138 (2006) ("[A]nalogies and metaphors play an important role in communicating science.").
464. That is, scientists must increasingly present and interpret complex technical information for the benefit of nonscientific policymakers. Craig Waddell, The Role of Pathos in the Decision- Making Process: A Study of the Rhetoric of Science Policy, in Landmark Essays on Rhetoric of Science 127, 127-28 (Randy Allen Harris ed., 1997).
465. Michael Alley, The Craft of Scientific Writing 115 (3d ed., Springer 1996).
466. Craig Waddell, The Role of Pathos in the Decision- Making Process: A Study of the Rhetoric of Science Policy, in Landmark Essays on Rhetoric of Science at 145. Likewise, there is some evidence that nonscientist members of the public draw on science for their arguments during notice-and-comment rulemaking.
467. See generally Danielle Endres, Science and Public Participation: An Analysis of Public Scientific Argument in the Yucca Mountain Controversy, 3 Envtl. Comm. 49 (2009).
468. See Wendy E. Wagner, Congress, Science, and Environmental Policy, 1999 U. Ill. L. Rev. 181, 199 (describing "scholarly attention to specific deficiencies in environmental laws and the rash of attacks on junk science").
469. There is a role for detailed dissents here, too. See, e.g., Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 225-26 (4th Cir. 2009) (Michael, J., dissenting in part and concurring in part) (concluding agency acted arbitrarily).
470. Citizens Coal Council v. EPA, 447 F.3d 879, 915-23 (6th Cir. 2006) (en banc) (Martin, J., dissenting) (arguing, in detail, why agency's actions were arbitrary and capricious).
471. H.R. Rep. No. 101-672 (1990). It is difficult to overstate the highly charged political nature of this issue.
472. H.R. Rep. No. 101-672, pt. 1, at 1-3. [Executive Summary].
473. See, e.g., American Legion Legislative Presentation: Joint Hearing on Legislative Priorities of the American Legion Before the H. and S. Veterans Affairs Comms., 104th Cong. (1995) (statement of Daniel Ludwig, National Commander, American Legion) (referencing petition for certiorari to Supreme Court in American Legion).
474. 38 U.S.C. § 1710(e)(1)(A) (2006) (emphasis added).
475. When the legislature directly monitors agency action, this approach is known as "policepatrol oversight." Arthur Lupia & Mathew D. McCubbins, Learning from Oversight: Fire Alarms and Police Patrols Reconstructed, 10 J.L. Econ & Org. 96, 97 (1994) ("By definition, police-patrol oversight is likely to be an effective way for legislators to track bureaucratic actions. However, it is also likely to be very costly in terms of the time and resources needed to conduct it.").
476. see also Frank B. Cross, Shattering the Fragile Case for Judicial Review of Rulemaking, 85 Va. L. Rev. 1243, 1303 (1999) (noting high transaction costs).
477. See James Boyd White, Justice as Translation 235 (1990) (crediting Ortega y Gasset for describing these modifications as "deficiencies" and "exuberances," respectively).
478. Professor White's work suggests that judges act as translators of legal texts, such as the Constitution, and in so doing, ought to apply meaning in light of modern issues and culture. See Arthur Lupia & Mathew D. McCubbins, Learning from Oversight: Fire Alarms and Police Patrols Reconstructed, 10 J.L. Econ & Org. at 269.
479. For reviews of this work, see Susan Sage Heinzelman, Another Version of "Sweetness and Light": White on Cultural and Legal Criticism, 17 Law & Soc. Inquiry 259 (1992) (book review).
480. See Carl F. Cranor, The Dual Legacy of Daubert v. Merrell-Dow Pharmaceutical: Trading Junk Science for Insidious Science, in Rescuing Science from Politics: Regulation and the Distortion of Scientific Research 120, 122.
481. Emily Hammond Meazell, Scientific Avoidance: Toward More Principled Judicial Review of Legislative Science, 84 Ind. L.J. at 253 & n.72 (collecting criticisms). Scholars of administrative law have raised similar objections. See McElmurray v. U.S. Dep't of Agric., 535 F. Supp. 2d 1318, 1325 (S.D. Ga. 2008) and accompanying text.
482. For an extreme example, see Steven B. Katz, The Ethic of Expediency: Classical Rhetoric, Technology, and the Holocaust, 54 C. Eng. 255 (1992), which discusses the ability of the Nazi regime to mask Holocaust atrocities with seemingly benign or highly technical rhetoric.
483. See, e.g., Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin. L. Rev. at 765 ("[C]ritics charge that hard look review may give judges an excuse to strike down policies they dislike on substantive grounds.").
484. The judicial ideology literature further suggests that "the ideological preferences of judges and Justices have considerable explanatory power in the context of judicial review of agency actions." Richard J. Pierce, Jr., What Do the Studies of Judicial Review of Agency Actions Mean?, 9 (George Washington Univ. L. Sch. Pub. Law & Legal Theory, Working Paper No. 505, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1604701. If this is so, perhaps one answer is that ideology is a complication that impacts judicial review regardless of where one lies on the hard-look-superdeference spectrum.