Rethinking judicial review of expert agencies

Texas Law Review

Volumn 93, Issue 7, 2015, Pages 1681-1721

  Fisher, Elizabeth ^a   Pascual, Pasky ^b   Wagner, Wendy ^c  

^a UNIVERSITY OF OXFORD   (United Kingdom)

^b U S ENVIRONMENTAL PROTECTION AGENCY   (United States)

^c TEXAS A AND M UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 84938544618     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (185)

1. Louis L. Jaffe, Judicial Control of Administrative Action 320 (1965).
2. See, e. g., Patricia M. Wald, Judicial Review in Midpassage: The Uneasy Partnership Between Courts and Agencies Plays On, 32 Tulsa L. J. 221, 221 (1996) (surveying the "hot spots of judicial review [of agency decisions] over a half-century").
3. E. Donald Elliott et al., Science, Agencies, and the Courts: Is Three a Crowd?, 31 Envtl. L. Rep. 10, 125, 10, 125 (2001) (transcribing a panel discussion of law-firm partners and professors on judicial review of agency science).
4. Compare Ethyl Corp. v. EPA, 541 F. 2d 1, 66 (D. C. Cir. 1976) (Bazelon, J., concurring) (advocating a particular kind of judicial deference to the scientific community regarding highly technical matters), (Leventhal, J., concurring) (relying on generalist judges to acquire the technical background necessary to review scientific decisions but also arguing for a particular kind of deference).
5. See Holly Doremus, Scientific and Political Integrity in Environmental Policy, 86 Texas L. Rev. 1601, 1602 (2008) (describing how scientists who provide reference information to the EPA may have a variety of reasons to falsify their data and interpretations that are used in the regulatory process).
6. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613, 1650-51 (1995) (arguing that agencies have "multiple political, legal, and institutional incentives to cloak policy judgments in the garb of science").
7. See Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the Chevron Doctrine in Environmental Law, 79 U. Colo. L. Rev. 767, 817-19 (2008) (highlighting the tendency of courts to defer to agencies when complicated science is involved).
8. Devra Lee Davis, The "Shotgun Wedding" of Science and Law: Risk Assessment and Judicial Review, 10 Colum. J. Envtl. L. 67, 85-86, 90-92 (1985) (describing cases in which the court deferred to the scientific expertise of the agency and claiming that the depth of a court's review of a scientific record "seems more a function of that court's predilections than of the applicable standard of review").
9. See, e. g., Emily Hammond Meazell, Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science, 109 Mich. L. Rev. 733, 756 (2011) (dismissing the theoretical and practical foundations of judicial "super deference" to agency science).
10. But we note that others question this. See Keith Werhan, Delegalizing Administrative Law, 1996 U. Ill. L. Rev. 423, 423 (maintaining that federal policy makers and the Supreme Court have been loosening controls and review of agency decision making).
11. Gordon G. Young, Judicial Review of Informal Agency Action on the Fiftieth Anniversary of the APA: The Alleged Demise and Actual Status of Overton Park's Requirement of Judicial Review "On the Record," 10 Admin. L. J. Am. U. 179, 217 (1996) (stating that under judicial review of an agency's rule, the rule will be valid "as long as it was appropriately based on statutory authority, on the comments, and on any other materials the agency actually considered").
12. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U. S. 402, 415-16, 420 (1971) (stating the first step of a court's review of agency action is to determine if the Secretary acted within their statutory authority, in which the administrative record plays an important role).
13. See Chevron, U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 843-45 (1984) (explaining the court's and agency's respective roles in statutory interpretation).
14. A. C. L. Davies, Accountability: A Public Law Analysis of Government by Contract 73 (2001).
15. 5 U. S. C. § 706(2)(a) (2012).
16. Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism 121-22 (2007) (discussing the "analytical opportunism" problem, in which "nearly any flaw in methodology can now be used as a basis for arguing that the decision was arbitrary and capricious or not based on substantial evidence").
17. David Michaels, Doubt Is Their Product: How Industry's Assault on Science Threatens Your Health 7-9 (2008) (describing the phenomenon in which scientific evidence or lack thereof is used to strategically manipulate legislation and regulation).
18. See, e. g., Carnegie Comm'n on Sci., Tech., & Gov't, Risk and The Environment: Improving Regulatory Decision Making 56, 73-74 (1993) (noting that regulatory decision making is a particularly great challenge for science-based regulatory agencies and that resulting ambiguity can make interpretation difficult for the courts).
19. Nicholas A. Ashford et al., A Hard Look at Federal Regulation of Formaldehyde: A Departure from Reasoned Decisionmaking, 7 Harv. Envtl. L. Rev. 297, 298 (1983) (analyzing the distinction between judicial review in hard science and science-policy issues).
20. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L. J. 1385, 1392 (1992) (explaining that rules promulgated by agencies regulating on "frontiers of scientific knowledge" may quickly be outdated by the time they make it to the courts (internal quotation marks omitted)).
21. Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 Admin. L. Rev. 59, 59 (1995) (positing that recent changes in legal doctrines will change the agency rulemaking process).
22. Sidney Shapiro, Elizabeth Fisher & Wendy Wagner, The Enlightenment of Administrative Law: Looking Inside the Agency for Legitmacy, 47 Wake Forest L. Rev. 463, 469-71 (2012).
23. Sidney A. Shapiro & Ronald F. Wright, The Future of the Administrative Presidency: Turning Administrative Law Inside-Out, 65 U. Miami L. Rev. 577, 589-90 (2011) (proposing an agency accountability model through which employees are influenced by internal agency controls to avoid self-interested behavior, rather than through external checks).
24. Sidney Shapiro, Elizabeth Fisher & Wendy Wagner, The Enlightenment of Administrative Law: Looking Inside the Agency for Legitmacy, 47 Wake Forest L. Rev. 463, 469-71 (2012).
25. Sidney Shapiro, Elizabeth Fisher & Wendy Wagner, The Enlightenment of Administrative Law: Looking Inside the Agency for Legitmacy, 47 Wake Forest L. Rev. 463, 469-71 (2012).
26. See, e. g., U. S. Envtl. Prot. Agency, Summary of the Updated Regulatory Impact Analysis (RIA) for the Reconsideration of the 2008 Ozone National Ambient Air Quality Standard (NAAQS), at S1-4 (2009), available at http://www. epa. gov/ttnecas1/regdata/RIAs/s1-supplemental_analysis_summary11-5-09. pdf.
27. archived at http://perma. cc/628Q-7E4U (indicating a range of between about $8 billion and more than $20 billion in costs annually between an ozone standard of 0. 070 ppm versus 0. 075 ppm).
28. 42 U. S. C. § 7409(d)(1) (2012).
29. Clean Air Amendments of 1970, Pub. L. No. 91-604, § 109(2)(b)(1), 84 Stat. 1676, 1680 (codified at 42 U. S. C. at § 7409(b)(1)).
30. 42 U. S. C. § 7409(b)(1)-(2) defines both primary and secondary NAAQS: (1) National primary ambient air quality standards, prescribed under subsection (a) of this section shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promulgated. (2) Any national secondary ambient air quality standard prescribed under subsection (a) of this section shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air. Such secondary standards may be revised in the same manner as promulgated.
31. Steven P. Croley, Regulation and Public Interests: The Possibility of GOOD Regulatory Government 165-66, 169-70 (2008) (describing the diverse set of interest groups that attempted to exert influence on EPA decision making over the past several decades). Thus, unlike some other rulemaking areas, business and environmental interests are both well represented and engaged in the legal disputes.
32. Harold Leventhal, Environmental Decision Making and the Role of the Courts, 122 U. Pa. L. Rev. 509, 510 (1974).
33. Devra Lee Davis, The "Shotgun Wedding" of Science and Law: Risk Assessment and Judicial Review, 10 Colum. J. Envtl. L. 67, 85-86, 90-92 (1985) (describing cases in which the court deferred to the scientific expertise of the agency and claiming that the depth of a court's review of a scientific record "seems more a function of that court's predilections than of the applicable standard of review").
34. See also Elizabeth Fisher, Pasky Pascual & Wendy Wagner, Understanding Environmental Models in Their Legal and Regulatory Context, 22 J. Envtl. L. 251, 262-64 (2010).
35. NAAQS Process Review Workgroup, U. S. Envtl. Prot. Agency, Review of the Process for Setting National Ambient Air Quality Standards, at E-1 (2006) [hereinafter NAAQS Memo], available at http://www. epa. gov/ttn/naaqs/pdfs/naaqs_process_report_march2006. pdf.
36. archived at http://perma. cc/VK38-5QWY.
37. See, e. g., Bruce A. Ackerman & William T. Hassler, Clean Coal/Dirty Air: Or How the Clean Air Act Became a Multimillion-Dollar Bail-Out for High-Sulfur Coal Producers and What Should be Done About It 7-9 (1981) (describing how the Clean Air Act Amendments of 1970 targeted critiques of conventional New Deal administrative agencies).
38. 42 U. S. C. § 7409(d)(2) (2012) (mandating a unique regulatory process with explicit requirements regarding who participates in decision making, including an independent scientific review committee).
39. An overview of the Clean Air Scientific Advisory Committee can be found at EPA Clean Air Scientific Advisory Committee (CASAC), U. S. Envtl. Protection Agency, http://yosemite. epa. gov/sab/sabpeople. nsf/WebCommittees/CASAC.
40. archived at http://perma. cc/DKX6-P8K4.
41. Congress formalized the creation of this board in 1978. History of the SAB, U. S. Envtl. Protection Agency, http://yosemite. epa. gov/sab/sabproduct. nsf/WebBOARD/SABHistory.
42. archived at http://perma. cc/6DAU-XCD5.
43. Committees and Membership, U. S. Envtl. Protection Agency, http://yosemite. epa. gov/sab/sabproduct. nsf/WebBOARD/CommitteesandMembership?.
44. OpenDocument, archived at http://perma. cc/FS5W-L5C7.
45. Pub. L. No. 95-95, § 106(2)(A), 91 Stat. 685, 691 (1977) (codified as amended at 42 U. S. C. § 7409(d)(2)(A) (2012)) (mandating the creation of "an independent scientific review committee").
46. More Information on the NAAQS Review Process, U. S. Envtl. Protection Agency, http://www. epa. gov/ttn/naaqs/review2. html.
47. archived at http://perma. cc/U6M6-TR67.
48. Sidney Shapiro, Elizabeth Fisher & Wendy Wagner, The Enlightenment of Administrative Law: Looking Inside the Agency for Legitmacy, 47 Wake Forest L. Rev. 463, 469-71 (2012).
49. Devra Lee Davis, The "Shotgun Wedding" of Science and Law: Risk Assessment and Judicial Review, 10 Colum. J. Envtl. L. 67, 85-86, 90-92 (1985) (describing cases in which the court deferred to the scientific expertise of the agency and claiming that the depth of a court's review of a scientific record "seems more a function of that court's predilections than of the applicable standard of review").
50. See also Thomas O. McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Geo. L. J. 729, 796-808 (1979) (describing various challenges to the EPA's scientific analysis and varying approaches to judicial review).
51. 42 U. S. C. § 7607(b) (2012).
52. Emily Hammond & David L. Markell, Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, 37 Harv. Envtl. L. Rev. 313, 321-22 (2013) (discussing the legitimizing role of judicial review and its relation to Congress's demand for agency accountability and conformity with statutes).
53. We excluded cases that only involved side issues relating to the NAAQS process.
54. The Clean Air Act confers exclusive judicial review of final agency actions to the U. S. Court of Appeals for the District of Columbia. 42 U. S. C. § 7607(b)(1). The one case decided by the Supreme Court was Whitman v. Am. Trucking Ass'ns, 531 U. S. 457 (2001).
55. One challenge to the Agency's standard setting was based on the nondelegation doctrine of the Constitution, rather than the arbitrary and capricious clause of the APA. Am. Trucking Ass'ns, 531 U. S. at 474-76 (finding that a delegation of authority to the EPA was constitutional).
56. We identified challenges to the EPA's decision process and to the substantive features of its decision. The four types of substantive challenges were: the EPA did/did not balance the weight of evidence appropriately; the EPA did/did not consider relevant strand(s) of evidence; the EPA did/did not apply the appropriate inferential method; the EPA did/did not draw the appropriate inference from the method.
57. This loosely follows other empirical studies of judicial review. See, e. g., Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 Duke L. J. 984, 989-90 (describing an analytical study of judicial review in 2, 325 administrative-action cases, seeking to reveal broad, dynamic patterns of administrative law).
58. Robert Glicksman & Christopher H. Schroeder, EPA and the Courts: Twenty Years of Law and Politics, Law & Contemp. Probs., Autumn 1991, at 249, 249 (examining "the relationship between EPA and the federal courts during the first twenty years of the Environmental Protection Agency").
59. Compare Am. Petroleum Inst. v. Costle, 665 F. 2d 1176, 1184, 1192 (D. C. Cir. 1981) (granting EPA substantial discretion on issues involving contested scientific judgment to the point of effectively taking a hands-off approach to arbitrary or capricious review).
60. Mississippi v. EPA, 744 F. 3d 1334, 1348-53 (D. C. Cir. 2013) (scrutinizing carefully the EPA's use of scientific evidence in reaching an ozone standard and ultimately upholding the chosen standard as neither aribtrary nor capricious).
61. In Lead Industries, the court appeared to adopt multiple, different standards of review. Lead Indus. Ass'n v. EPA, 647 F. 2d 1130, 1145 (D. C. Cir. 1980) (citing the deferential arbitrary or capricious standard yet also discussing the need for the judiciary to "delve into the scientific literature" and make a "substantial inquiry" into the facts (internal quotation marks removed)).
62. For a discussion of CASAC, the scientific advisory board created by the amendments, see Sheila Jasanoff, The Fifth Branch: Science Advisers as Policymakers 102-04 (1990). Note because of the time it takes between initiating a rule, passing it, and any challenge to it, the CASAC did not play a role in judicial-review reasoning until 1990.
63. See, e. g., Natural Res. Def. Council, Inc. v. EPA, 902 F. 2d 962, 997 (D. C. Cir. 1990).
64. Kennecott Copper Corp. v. EPA, 462 F. 2d 846, 848-49 (D. C. Cir. 1972) (Leventhal, J.) (proclaiming that "judicial review rests on the premise that agency and court 'together constitute a "partnership" in furtherance of the public interest'").
65. Greater Bos. Television Corp. v. FCC, 444 F. 2d 841, 851 (D. C. Cir. 1970).
66. Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (1970).
67. Jack Lewis, The Birth of EPA, EPA J., Nov. 1985, at 6, 6.
68. National Primary and Secondary Ambient Air Quality Standards, Notice of Proposed Standards for Sulfur Oxides, Particulate Matter, Carbon Monoxide, Photochemical Oxidants, Hydrocarbons, and Nitrogen Oxides, 36 Fed. Reg. 1502, 1502 (Jan. 30, 1971) (to be codified at 42 C. F. R. pt. 410) [hereinafter National Primary and Secondary Ambient Air Quality Standards Notice].
69. (referencing National Air Pollution Control Administration (NAPCA) air pollution criteria documents as providing the basis for developing the proposed standards for the six criteria pollutants). See also R. Shep Melnick, Regulation and the Courts: The Case of the Clean Air Act 77 (1983) (citing a 1969 NAPCA guideline discussing state air quality standards in justification for the proposed criteria pollutants standards).
70. Leonard A. Miller & Doyle J. Borchers, Private Lawsuits and Air Pollution Control, 56 A. B. A. J. 465, 467 (1970) (explaining NAPCA's role in developing criteria documents for air pollutants).
71. National Primary and Secondary Ambient Air Quality Standards, Notice of Proposed Standards for Sulfur Oxides, Particulate Matter, Carbon Monoxide, Photochemical Oxidants, Hydrocarbons, and Nitrogen Oxides, 36 Fed. Reg. 1502, 1502 (Jan. 30, 1971) (to be codified at 42 C. F. R. pt. 410) [hereinafter National Primary and Secondary Ambient Air Quality Standards Notice].
72. Kennecott Copper Corp. v. EPA, 462 F. 2d 846, 847-48 (D. C. Cir. 1972) (noting that Congress provided for informal rulemaking in § 109 of the Clean Air Act).
73. Kennecott Copper Corp., 462 F. 2d at 846-47.
74. "The provision for statutory judicial review contemplates some disclosure of the basis of the agency's action.".
75. Harold Leventhal, Environmental Decision Making and the Role of the Courts, 122 U. Pa. L. Rev. 509, 510 (1974).
76. William F. Pedersen, Jr., Formal Records and Informal Rulemaking, 85 Yale L. J. 38, 39 (1975) (arguing that the procedures used in rulemaking have been outpaced by regulatory developments and that such procedures "provide neither a satisfactory framework for agency decisionmaking nor a structure to those decisions that would ease judicial review").
77. Suggesting that rulemaking procedures "provide for compiling and organizing an administrative record while rulemaking is in process, with use of a discovery system to ensure that no material which properly should be included is left out".
78. David L. Bazelon, Coping with Technology Through the Legal Process, 62 Cornell L. Rev. 817, 823 (1977).
79. Kennecott Copper Corp., Nev. Mines Div. v. Train, 424 F. Supp. 1217, 1222 (D. Nev. 1976).
80. Kennecott Copper Corp., Nev. Mines Div. v. Costle, 572 F. 2d 1349 (9th Cir. 1978).
81. John Bachmann, Will the Circle Be Unbroken: A History of the U. S. National Ambient Air Quality Standards, 57 J. Air & Waste Mgmt. Ass'n 652, 661-63 (2007) (cataloging major procedural reforms in environmental standards throughout the 1960s and 1970s).
82. See, e. g., Ethyl Corp. v. EPA, 541 F. 2d 1, 33-36 (D. C. Cir. 1976) (concluding that courts must not review agency action through an overly technical lens but rather exercise their "narrowly defined duty of holding agencies to certain minimal standards of rationality").
83. Natural Res. Def. Council, Inc. v. Nuclear Regulatory Comm'n, 547 F. 2d 633, 646 (D. C. Cir. 1976).
84. rev'd sub nom. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U. S. 519 (1978) ("Since a reviewing court is incapable of making a penetrating analysis of highly scientific or technical subject matter on its own, it must depend on the agency's expertise. ").
85. See, e. g., David L. Bazelon, Science and Uncertainty: A Jurist's View, 5 Harv. Envtl. L. Rev. 209, 211-12 (1981) (recognizing courts' limitations in reviewing agency science and technology decisions that fall outside the general knowledge of most lawyers).
86. J. Skelly Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L. Rev. 375, 392-93 (1974) (considering various proposed standards for judicial review, including the arbitrary and capricious test, substantive review, and the ad hoc approach).
87. Richard B. Stewart, Vermont Yankee and the Evolution of Administrative Procedure, 91 Harv. L. Rev. 1805, 1811 (1978) (arguing for the "hard look" approach to review of agency decisions).
88. See, e. g., Lead Indus. Ass'n v. EPA, 647 F. 2d 1130, 1146 (D. C. Cir. 1980) (involving an EPA record described as "lengthy-approximately 10, 000 pages-and. highly technical").
89. Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism 121-22 (2007) (discussing the "analytical opportunism" problem, in which "nearly any flaw in methodology can now be used as a basis for arguing that the decision was arbitrary and capricious or not based on substantial evidence").
90. 647 F. 2d 1130 (D. C. Cir. 1980).
91. 665 F. 2d 1176 (D. C. Cir. 1981).
92. Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism 121-22 (2007) (discussing the "analytical opportunism" problem, in which "nearly any flaw in methodology can now be used as a basis for arguing that the decision was arbitrary and capricious or not based on substantial evidence").
93. Most obviously Chevron U. S. A., Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 845 (1984), illustrates this point, but for how the doctrine can be understood in inside-out terms.
94. Sidney Shapiro & Elizabeth Fisher, Chevron and the Legitimacy of "Expert" Public Administration, 22 Wm. & Mary Bill Rts. J. 465, 482 (2013).
95. See also Thomas O. McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Geo. L. J. 729, 796-808 (1979) (describing various challenges to the EPA's scientific analysis and varying approaches to judicial review).
96. See, e. g., Carnegie Comm'n on Sci., Tech., & Gov't, Risk and The Environment: Improving Regulatory Decision Making 56, 73-74 (1993) (noting that regulatory decision making is a particularly great challenge for science-based regulatory agencies and that resulting ambiguity can make interpretation difficult for the courts).
97. See also Thomas O. McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Geo. L. J. 729, 796-808 (1979) (describing various challenges to the EPA's scientific analysis and varying approaches to judicial review).
98. Lead Indus. Ass'n v. EPA, 647 F. 2d 1130, 1184 (D. C. Cir. 1980).
99. Whitman v. Am. Trucking Ass'ns, 531 U. S. 457 (2001).
100. See also Elizabeth Fisher, Case Note, Risk Regulation and the Rule of Law: Searching for 'Intelligible Principles' in the Administrative State, 3 Envtl. L. Rev. 139, 141 (2001) (describing American Trucking as "a prime example" of the inherent difficulty of reconciling legislative regulations and administrative actions).
101. Lead Indus., 647 F. 2d at 1145 (emphasis added).
102. Quoting Ethyl Corp. v. EPA, 541 F. 2d 1, 36-37 (D. C. Cir. 1976).
103. Quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U. S. 402, 415-16 (1971).
104. Finding that the "Lead Criteria Document was the culmination of a process of rigorous scientific and public review" and a sufficient basis to support the EPA's action.
105. (alteration in original) (quoting 42 U. S. C. § 7408(a)(2)).
106. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
107. An overview of the Clean Air Scientific Advisory Committee can be found at EPA Clean Air Scientific Advisory Committee (CASAC), U. S. Envtl. Protection Agency, http://yosemite. epa. gov/sab/sabpeople. nsf/WebCommittees/CASAC.
108. U. S. Envtl. Prot. Agency, Integrated Science Assessment for Particulate Matter: First External Review Draft 1-8 (2008).
109. Process of Reviewing the National Ambient Air Quality Standards, U. S. Envtl. Protection Agency, http://www. epa. gov/ttn/naaqs/review. html.
110. archived at http://perma. cc/U784-4T24.
111. Am. Farm Bureau Fed'n v. EPA, 559 F. 3d 512 (D. C. Cir. 2009) (per curiam).
112. E. g., Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA, 686 F. 3d 803, 811 (D. C. Cir. 2012) (describing petitioner's argument that the EPA should not have relied on epidemiological studies with confounding factors).
113. Am. Petroleum Inst. v. EPA, 684 F. 3d 1342, 1349 (D. C. Cir. 2012) (noting API's position that the EPA inappropriately discounted the results of the Goodman study).
114. Coal. of Battery Recyclers Ass'n v. EPA, 604 F. 3d 613, 618 (D. C. Cir. 2010) (recounting petitioner's contention that the EPA should not have used studies showing relationship between blood lead level and IQ loss).
115. Natural Res. Def. Council, Inc. v. EPA, 902 F. 2d 962, 969 (D. C. Cir. 1990) (describing petitioner's argument that the EPA should have relied more on the Lawther and London mortality studies and less on the Six Cities study).
116. E. g., Nat'l Envtl. Dev. Ass'n's Clean Air Project, 686 F. 3d at 812 (refusing to find arbitrary the EPA's decision to give special weight to studies conducted using multipollutant regression models).
117. Am. Petroleum Inst., 684 F. 3d at 1350 (determining that the EPA's treatment of the Goodman study did not fall below the arbitrary and capricious standard).
118. Coal. of Battery Recyclers, 604 F. 3d at 617 (finding the EPA's reliance on particular studies relating blood-lead level and IQ to be neither arbitrary nor capricious).
119. Natural Res. Def. Council, 902 F. 2d at 970, 976 (upholding the Administrator's choice not to rely heavily on the Lawther and London mortality studies and denying each of the claims presented against the EPA).
120. See, e. g., Am. Trucking Ass'ns v. EPA, 283 F. 3d 355, 370 (D. C. Cir. 2002) (relying in part on CASAC's supportive opinion to find for the EPA).
121. Am. Petroleum Inst. v. Costle, 665 F. 2d 1176, 1187 (D. C. Cir. 1981) (finding the Administrator's selection of a margin of safety was rational).
122. Lead Indus. Ass'n v. EPA, 647 F. 2d 1130, 1146 (D. C. Cir. 1980) (stating that the court will not "second-guess the Agency's expert decisionmaker" on scientific and technical matters).
123. E. g., Am. Petroleum Inst., 665 F. 2d at 1185 (D. C. Cir. 1981) ("The proper function of the court is not to weigh the evidence anew and make technical judgments; our role is limited to determining if the [EPA] made a rational judgment. ").
124. Natural Res. Def. Council, 902 F. 2d at 971 ("[Petitioner] essentially asks this court to give different weight to the studies than did the [EPA]. We must decline. It is simply not the court's role to 'second-guess the scientific judgments of the EPA. '") (citation omitted).
125. Am. Petroleum Inst., 665 F. 2d at 1187 (refusing to reverse where the EPA conclusion as to an adequate margin of safety was based on a reasoned analysis and evidence of risk).
126. Refuting suggestions that the EPA abandoned its statutory charge to protect public health by characterizing the EPA's actions as reasonable in light of the scientific information. It is worth noting that the opinion was written by Judge Robb but was joined by Judge Mikva and Judge Wald (who dissented in part on the factual question of whether the National Resources Defense Council had waived its objection regarding postcomment White House review). On balance, the panel seems relatively sympathetic to the environmental petitioners' claims.
127. 902 F. 2d 962 (D. C. Cir. 1990).
128. Upholding the EPA's standard on the grounds that it was not unreasonable, arbitrary, or capricious without further articulation of what these measures involve.
129. 134 F. 3d 388 (D. C. Cir. 1998).
130. 175 F. 3d 1027 (D. C. Cir. 1999) (per curiam), aff'd in part, rev'd in part sub nom. Whitman v. Am. Trucking Ass'ns, 531 U. S. 457 (2001).
131. Am. Trucking Ass'ns, 531 U. S. at 472.
132. Am. Trucking Ass'ns v. EPA, 283 F. 3d 355, 357-59 (D. C. Cir. 2002). Note that the judgment of the court was delivered by Judge Tatel, who gave the minority judgment in the first American Trucking Associations in the D. C. Circuit. 175 F. 3d at 1057.
133. Am. Trucking Ass'ns, 283 F. 3d at 358-59, 380 (elaborating on the statutory and procedural requirements of EPA decision making and ultimately finding the EPA's actions proper).
134. (alterations in original) (quoting Lead Indus. Ass'n v. EPA, 647 F. 2d 1130, 1160 (D. C. Cir. 1980)) (internal quotation marks omitted).
135. Am. Farm Bureau Fed'n v. EPA, 559 F. 3d 512, 522 (D. C. Cir. 2009) (per curiam).
136. National Ambient Air Quality Standards for Particulate Matter, 71 Fed. Reg. 61, 144, 61, 172 (Oct. 17, 2006) (to be codified at 40 C. F. R. pt. 50).
137. Am. Farm Bureau Fed'n, 559 F. 3d at 520, 528 (finding the EPA's explanations of its action inadequate while noting the defect was curable).
138. NAAQS Process Review Workgroup, U. S. Envtl. Prot. Agency, Review of the Process for Setting National Ambient Air Quality Standards, at E-1 (2006) [hereinafter NAAQS Memo], available at http://www. epa. gov/ttn/naaqs/pdfs/naaqs_process_report_march2006. pdf.
139. This approach in many ways follows some of the recommendations made by Professor Elliott based on his experience as General Counsel of the EPA. See E. Donald Elliott, Strengthening Science's Voice at EPA, Law & Contemp. Probs., Autumn 2003, at 45, 51, 57-58 (advocating for the modification of the rule that courts "do not go behind an agency's written decision to inquire into the mental processes of decisionmakers" and for the empowerment of scientists to make policy recommendations).
140. Adapted from Memorandum from Lisa Jackson, Adm'r, Envtl. Prot. Agency, to Elizabeth Craig, Acting Assistant Adm'r for Air and Radiation, Envtl. Prot. Agency, and Lek Kadeli, Acting Assistant Adm'r for Research and Dev., Envtl. Prot. Agency (May 21, 2009), available at http://www. epa. gov/ttn/naaqs/pdfs/NAAQSReviewProcessMemo52109. pdf.
141. archived at http://perma. cc/FSA2-QQ96.
142. U. S. envtl. prot. agency, policy assessment for the review of the particulate matter national ambient air quality standards 2-80 fig. 2-8 (2011) [hereinafter EPA POLICY ASSESSMENT].
143. U. S. Envtl. Prot. Agency, Integrated Science Assessment for Particulate Matter 1-13 to-14 (2009) [hereinafter Integrated Science Assessment].
144. U. S. envtl. prot. agency, policy assessment for the review of the particulate matter national ambient air quality standards 2-80 fig. 2-8 (2011) [hereinafter EPA POLICY ASSESSMENT].
145. E. g., National Ambient Air Quality Standards for Particulate Matter, 78 Fed. Reg. 3086, 3174 (Jan. 15, 2013) (to be codified at 40 C. F. R. pts. 50, 51, 52, 53, 58) (noting the large uncertainty in the extent to which changing the PM standard would have an effect on public health).
146. U. S. envtl. prot. agency, policy assessment for the review of the particulate matter national ambient air quality standards 2-80 fig. 2-8 (2011) [hereinafter EPA POLICY ASSESSMENT].
147. U. S. Envtl. Prot. Agency, Integrated Science Assessment for Particulate Matter: First External Review Draft 1-8 (2008).
148. 750 F. 3d 921 (D. C. Cir. 2014).
149. 744 F. 3d 1334 (D. C. Cir. 2013).
150. Note that the secondary standard was remanded for further explanation.
151. Determining that the EPA's acknowledgement of the limits of epidemiological studies satisfied the minimal standards of rationality.
152. E. g., Ctr. for Biological Diversity v. EPA, 749 F. 3d 1079, 1087 (D. C. Cir. 2014).
153. ("When EPA selects a standard during a rulemaking, it must exercise 'reasoned' decisionmaking. " (quoting Am. Farm Bureau Fed'n v. EPA, 559 F. 3d 512, 530 (D. C. Cir. 2009) (per curiam))).
154. 748 F. 3d 333 (D. C. Cir. 2014).
155. For example, the opinion affirming the EPA's rule in Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA, 686 F. 3d 803, 809-13 (D. C. Cir. 2012), involves a much less intensive (and impressive) engagement of the court with the underlying technical issues. The opinion, viewed in isolation, is more characteristic of Era 2 judicial review than Era 3 because of the court's handsoff and generally superficial (if not incoherent) treatment of the scientific challenges at issue.
156. Daubert v. Merrell Dow Pharm., Inc., 509 U. S. 579, 601 (1993) (Rehnquist, C. J., concurring in part and dissenting in part) (questioning the authority of judges "to become amateur scientists" when determining the admissibility of expert testimony).
157. Devra Lee Davis, The "Shotgun Wedding" of Science and Law: Risk Assessment and Judicial Review, 10 Colum. J. Envtl. L. 67, 85-86, 90-92 (1985) (describing cases in which the court deferred to the scientific expertise of the agency and claiming that the depth of a court's review of a scientific record "seems more a function of that court's predilections than of the applicable standard of review").
158. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
159. See generally Thomas O. McGarity & Wendy E. Wagner, Bending Science: How Special Interests Corrupt Public Health Research 2 (2008) (arguing that the problem of bending science has spread from courts and legislatures to the scientific community itself, as well as illustrating the ways in which "outside advocates can corrupt [and distort] legitimate scientific processes").
160. Wendy Wagner, Science in Regulation: A Study of Agency Decisionmaking Approaches 12 (2013) (positing that it may be difficult for the nonscientific public to understand "where the science leaves off and the policy choices begin").
161. See also 1 Nat'l Sci. Bd., Science and Engineering Indicators 2004, at 7-3, 7-15 to-17 (2004) (reporting low levels of basic scientific knowledge among Americans and the difficulty of meaningfully communicating scientific concepts to the public).
162. E. Donald Elliott et al., Science, Agencies, and the Courts: Is Three a Crowd?, 31 Envtl. L. Rep. 10, 125, 10, 125 (2001) (transcribing a panel discussion of law-firm partners and professors on judicial review of agency science).
163. See, e. g., Emily Hammond Meazell, Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science, 109 Mich. L. Rev. 733, 756 (2011) (dismissing the theoretical and practical foundations of judicial "super deference" to agency science).
164. Ethyl Corp. v. EPA, 541 F. 2d 1, 67 (D. C. Cir. 1976) (Bazelon, C. J., concurring).
165. quoting Envtl. Def. Fund, Inc. v. Ruckelshaus, 439 F. 2d 584, 598 (D. C. Cir. 1971) (Bazelon, C. J.).
166. Harold Leventhal, Environmental Decision Making and the Role of the Courts, 122 U. Pa. L. Rev. 509, 510 (1974).
167. Greater Bos. Television Corp. v. FCC, 444 F. 2d 841, 851-52 (D. C. Cir. 1970) (Leventhal, J.) (stressing the collaborative partnership of courts and agencies in the furtherance of the public interest).
168. This is well illustrated by the struggles we had in our earlier approaches to empirically charting the case law.
169. This conclusion is consistent with our conclusion in an earlier article that the making visible of inference methods is an important step in ensuring accountable decisions. See our earlier arguments in Pasky Pascual, Wendy Wagner & Elizabeth Fisher, Making Method Visible: Improving the Quality of Science-Based Regulation, 2 Mich. J. Envtl. & Admin. L. 429, 470-71 (2013).
170. NAAQS Process Review Workgroup, U. S. Envtl. Prot. Agency, Review of the Process for Setting National Ambient Air Quality Standards, at E-1 (2006) [hereinafter NAAQS Memo], available at http://www. epa. gov/ttn/naaqs/pdfs/naaqs_process_report_march2006. pdf.
171. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613, 1650-51 (1995) (arguing that agencies have "multiple political, legal, and institutional incentives to cloak policy judgments in the garb of science").
172. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
173. U. S. Envtl. Prot. Agency, Integrated Science Assessment for Particulate Matter: First External Review Draft 1-8 (2008).
174. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613, 1650-51 (1995) (arguing that agencies have "multiple political, legal, and institutional incentives to cloak policy judgments in the garb of science").
175. Such a finding also underscores the dangers embodied in congressional gestures, such as a recent bill passed by the House, that limit the ability of independent scientists to serve on science advisory boards for the EPA. Cristina Marcos, House Passes Bill to Reform EPA Science Panel, Hill, Nov. 18, 2014, http://thehill. com/blogs/floor-action/house/224615-house-passes-billto-reform-epa-science-panel.
176. archived at http://perma. cc/RYK9-ZU2L. While conflicts of interest are important to manage, excluding scientists from serving as science advisors simply because they have done work on an issue moves in precisely the opposite direction from features of the NAAQS process that make it particularly successful.
177. In their essay on Massachusetts v. EPA, 549 U. S. 497 (2007), Professors Freeman and Vermeule identify a line of cases that they attribute to the courts' impatience with "executive override of expert judgments" in ways that "appear to disregard established professional or bureaucratic practices and procedures.".
178. Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51, 93-94.
179. Am. Farm Bureau Fed'n v. EPA, 559 F. 3d 512, 520 (D. C. Cir. 2009) (per curiam) (finding the EPA's explanation of the choice of standard insufficient in view of risks flagged by CASAC).
180. Mississippi v. EPA, 744 F. 3d 1334, 1362 (D. C. Cir. 2013) (remanding EPA's secondary NAAQS for reconsideration because the EPA did not provide adequate explanation).
181. E. g., Final Opening Brief of State Petitioners and State Amici at 16, Am. Farm Bureau Fed'n v. EPA, 559 F. 3d 512 (D. C. Cir. 2009) (No. 06-1410), 2008 WL 2609199, at *16 (arguing that the Administrator "erroneously disregarded epidemiological studies that both CASAC and EPA staff concluded were relevant").
182. Opening Brief of American Lung Association, Environmental Defense, and National Parks Conservation Association at 12, Am. Farm Bureau Fed'n v. EPA, 559 F. 3d 512 (D. C. Cir. 2009) (No. 06-1410), 2008 WL 2556682, at *12-13 (repeatedly documenting how EPA ignored the record, the Staff Papers, and CASAC in setting the PM10 standard).
183. Am. Petroleum Inst. v. Costle, 665 F. 2d 1176, 1187 (D. C. Cir. 1981).
184. (affirming the EPA's standards while noting their production was "not a model of regulatory action").
185. Ethyl Corp. v. EPA, 541 F. 2d 1, 68 (D. C. Cir. 1976) (Leventhal, J., concurring).