Delineating deference to agency science: doctrine or political ideology?

• Author: Nelson, Laura Anzie

1. INTRODUCTION II. THE PREDICAMENT: A MIXTURE OF POLICY AND SCIENCE A. Background" Judicial Deference to Agency Rulemaking B. Scientific Expertise C. The Ninth Circuit After Lands Council 1. When Are Agencies Given Deference? a. Ecology Center v. Castaneda b. Latino Issues Forum v. United States Environmental Protection Agency 2. When Is Agency Analysis Remanded? a. Center for Biological Diversity v. United States Department of Interior (CBD v. DOI) b. Tucson Herpetological Society v. Salazar 3. Can These Caves Be Reconciled? III. THE IMPERFECTION: POLITICAL IDEOLOGY A. The Relationship Between Legal Doctrine and the Individual B. Survey of Recent Environmental Cases C. How Other Courts Have Treated Agency Expertise D. Implications of Ideological Voting and a Proposed Remedy. IV. THE ASPIRATION: CONSISTENCY I. INTRODUCTION

   Judicial review legitimates the American administrative system. (1) Most importantly, it provides reassurance to the public that administrative agencies are operating within the limits of their power delegated by Congress, appropriately navigating a myriad of statutory mandates. (2) Yet discretion among agencies to complete Congress's delegated tasks is essential for efficient and creative governance. (3) Any model for judicial review must strike a careful balance between ensuring legitimacy through review and protecting flexibility and efficiency through agency deference.

   In 1965, writing amidst a heated policy debate over federal regulatory agencies, (4) Professor Louis Jaffe set forth three goals for a system of judicial review of administrative agencies: "comprehensiveness, simplicity, and predictability." (5) These goals are still relevant today. The ability of an agency to comprehend and predict the legality of its decisions is integral to efficient governance. If a court finds a particular agency action unlawful, presumably the agency can recalibrate its operations, striving to not exceed its newly defined legal bounds. However, if courts appear to fluctuate--upholding one administrative decision while vacating another decision on similar facts--then agencies will either devote their limited resources to preparing an extensive record in anticipation of litigation, or conversely, dedicate little time to their analyses, hoping to get a deferential panel. (6) Such inconsistent judicial results are sometimes called the "lottery" effect. (7) While a degree of individual variation is inevitable--no set of facts are identical and no body of judges can apply the law with precise uniformity--a high level of unpredictability in judicial review greatly impairs the honesty and integrity of governmental operation.

   "Judicial review" assumes different forms for different situations. (8) "Arbitrary and capricious review," a standard set forth in the Administrative Procedure Act (APA), (9) governs agency decisions in informal rulemaking. (10) However, within that standard, the review of an agency's determinations of fact differ from the review of an agency's statutory interpretation or policy determinations. (11) Because judges are experts in the law, not science or economics, they exact a more deferential standard of review to an agency's factual determinations. Moreover, courts are especially deferential when reviewing agencies' evaluations of technical matters and scientific data. (12) However, determining what constitutes a scientific "fact" is not always a simple task. (13)

   To illustrate, imagine conducting a risk assessment for an industrial waste management site. (14) Setting the parameters of the study and selecting the modeling techniques are not only scientific design choices, they also involve policy choices and value systems. (15) To determine what measures a waste management site should take to prevent adverse impacts to the groundwater supply, suppose the risk assessment models human exposure to groundwater contaminants due to inhalation during a shower. (16) To model showering risks to human health, the assessment must set many parameters such as how long the shower will last, how high the water temperature is, the size of the shower enclosure, and the amount of air circulation. (17) The value assigned to each parameter will change the output of the model, and thus the number of precautions which must be taken by the waste management company (18) regulated under the Resource Conservation and Recovery Act (RCRA). (19) The risk assessment must use, for example, toxicology studies for the chemical compound quinoline, conducted on rats in order to project what levels of exposure will have noticeable impacts on human health. (20) The risk assessment will ultimately determine what level of risk is acceptable. Based on different standards of review, judges are often presented with this challenging inquiry: Are the choices over parameter settings, models, and acceptable risks considered scientific determinations or are they policy choices? If the decisions are policy choices, judges are free to examine the reasoning more closely to determine whether the agency is acting pursuant to Congress's articulated policies or whether the agency rationally interpreted those policies. These types of inquiries, where facts and policy mix, regularly occur in environmental regulation, where agencies must make decisions with uncertain outcomes or conflicting science. (21) Complicating matters, judges have not always answered such inquiries consistently.

   In 2008, the United States Court of Appeals for the Ninth Circuit issued its often-cited en banc decision in Lands Council v. McNair (22) "to clarify some of [its] environmental jurisprudence with respect to [its] review of the actions of the United States Forest Service." (23) The en banc panel pointed to the errors it made in an earlier case, Ecology Center v. Austin, (24) which imposed a requirement on the agency not found in any statute or regulation, and which "defied well-established law concerning the deference [the court] owe[s] to agencies and their methodological choices." (25) Overruling Ecology Center v. Austin, the court declined "to act as a panel of scientists" that instructed the agency how it should conduct its scientific studies and would not "order[] the agency to explain every possible scientific uncertainty." (26) Of course, reference to the strong language in Lands Council has not been limited to Forest Service actions--the case has been cited in review of decisions made by other federal agencies such as the Bureau of Land Management (BLM), (27) the Environmental Protection Agency (EPA), (28) the National Marine Fisheries Service (NMFS), (29) the Fish and Wildlife Service (FWS), (30) and the Minerals Management Service (MMS). (31)

   The Ninth Circuit has explained that its standard of review is more deferential in areas concerning an agency's scientific or technical expertise. (32) However, demonstrated in the pages to follow, an increased deferential demeanor towards "agency expertise" is dangerous without qualification or more guidance. (33) Many scholars have identified agency tendencies to recast policy judgments as scientific findings to avoid public and judicial scrutiny of tough policy decisions, u This tendency often leads to judicial misunderstanding, where courts perceive agency findings as scientific fact and apply a more deferential standard of review. (35) The Ninth Circuit's arbitrary and capricious standard of review has proven rather malleable. (36) Depending upon the skill of the advocates and the scientific training of the judges, a Ninth Circuit panel might characterize the case as one involving complex scientific determinations, to which it should defer, or as one involving policy choices, giving the court a little more leeway to scrutinize the agency's rationale. Lands Council's "clarification" (37) has not proven itself very useful in recent cases where Ninth Circuit panels continue to fluctuate over how to appropriately define the scope of its review, unsure of which agency determinations are scientific and which involve policy. (38)

   The rationale and outcome of recent Ninth Circuit agency review cases indicate a pattern: not one governed by legal doctrine, but by political ideology. (39) The Ninth Circuit's current standard of review for alleged arbitrary agency action performs the following inquiry: Is the court asked to examine an agency's scientific and technical findings? If so, the court must extend greater deference than awarded to non-scientific agency judgments. (40) This inquiry skips an integral step. As an antecedent, the court should also ask: Which components of an agency's scientific and technical findings implicate policy choices? Do the agency's findings of uncertain, unknowable, or future events use principles consistent with the controlling statutory goal or policy? Has the agency articulated how it interprets the applicable statutory policy as it relates to the implementation under question? (41) Without this procedural step to guide judges of the Ninth Circuit through agency decisions, the outcome will largely be determined by panel composition, creating inconsistent precedent. (42) Using the Ninth Circuit's malleable standard of arbitrariness review, judicial opinions deciding whether or not to ultimately affirm or vacate agency decision making will be governed by the individual policy preferences of each judge. This paper sets out to demonstrate first that individual political ideologies greatly influence recent environmental decisions. In doing so, Part II.A provides a general background on deference to administrative decisions, followed by Part II.B, which elaborates on decisions involving science or technical expertise. Part II.C closely examines four recent environmental cases coupled with Part III's broader survey, spanning from Lands Council to present, to demonstrate first that the decisions lack a consistent level of deference to agency expertise and second, that they...