Science, politics, and administrative legitimacy.

• Author: Virelli, Louis J., III

1. INTRODUCTION

   Administrative agencies in the United States and other constitutional democracies around the world are continually faced with difficult questions about the legitimacy of their decisions. (1) Each of these legitimacy questions in turn raises important second-order questions about how agencies should view their role within a constitutional democracy: How closely should agency decisions reflect popular political will? When and to what degree are deviations from popular opinion justified, and what measures should be taken to reduce the gap between regulators and the governed? What other sources of information are critical to agency decision making, and how should those inputs be treated when they counsel against politically popular outcomes? This short Article seeks to direct closer attention to a particular legitimacy question and, in the process, to offer some additional areas for thought as well as some ideas on how to begin addressing that question.

   The specific legitimacy question of interest here is whether an agency decision may be made for political reasons (2) that are at odds with the scientific inputs underlying that decision. This is not to say that political considerations should not be a primary concern of administrative actors, or that a particular decision or category of decision is substantively incorrect or outside the public interest because it does not comport with relevant scientific evidence. These statements may or may not be true, but in either event, they are not the subject of the present inquiry. This Article focuses on a more basic question about the role of scientific information in administrative law--whether agencies have a democratic obligation to incorporate scientific understanding into their policy decisions. Part II highlights the phenomenon of "counter-scientific" policy decisions; decisions that overlook otherwise uncontroverted scientific evidence in favor of political rationales. Part III introduces the principles underlying administrative legitimacy and draws a distinction between legitimacy and statutory authorization. Part IV then examines counterscientific policy decisions in light of those legitimacy principles and identifies several variables that affect legitimacy, including the nature of the agency and its mission and the type and form of the specific policy decision at issue.

2. SOME TENSIONS BETWEEN SCIENCE AND POLITICS

   Three relatively recent examples from the United States illustrate the focus of this Article. The first two involve decisions by the Environmental Protection Agency (EPA). In 2005, the EPA decided not to promulgate additional regulations regarding the weed killer Atrazine. (3) Just prior to the EPA's decision, the European Union banned Atrazine on the basis of multiple scientific studies concluding that Atrazine caused dangerous hormonal changes in test animals. (4) Although the EPA claimed that there was uncertainty regarding Atrazine's harmful effects, the EPA's Scientific Advisory Panel found that the studies relied on to support Atrazine's continued use were fundamentally flawed. (5) The EPA, however, remained steadfast in its decision not to further regulate Atrazine due to scientific uncertainty about its effects, despite significant (and essentially uncontroverted) scientific evidence to the contrary.

   A more recent EPA example involved an attempt by the agency to lower the emissions threshold for ground-level ozone. (6) The EPA Administrator suggested decreasing the threshold because, in the agency's view, the existing standards "were not legally defensible given the scientific evidence" provided by the EPA's scientific advisory committee. (7) President Obama asked the Administrator to withdraw the proposed standards not due to scientific uncertainty, but for economic reasons. (8) In this instance, the conflict between politics and science was made explicit--rather than take issue with the credibility of the agency's scientific conclusions, the President relied on political considerations to support his decision to block the new standards.

   Finally, a recent and highly controversial decision by the United States Department of Health and Human Services (HHS) provides perhaps the most revealing example of the potential problems for administrative law when science and politics collide. In 1999, the Food and Drug Administration (FDA), a federal agency under the purview of HHS, approved the morning-after contraceptive pill "Plan B" as a prescription drug. (9) Pursuant to an application requesting that Plan B be approved for over-the-counter (OTC) as opposed to prescription sales, an FDA scientific advisory committee voted 23-4 to approve OTC sales of Plan B in 2003. (10) After several years of internal agency deliberations, including some public comment periods and a federal court decision, (11) the FDA approved Plan B for OTC sales to consumers seventeen years and older (and prescription sales to those younger than seventeen). (12) In 2011, the FDA received a supplemental application to remove the prescription-only status of Plan B for consumers under seventeen. (13) The FDA's Center for Drug Evaluation and Research reviewed the application and provided its scientific determination that Plan B is safe and effective for OTC use by "all females of child-bearing potential," including those younger than seventeen. (14) HHS Secretary Sebelius, however, rejected the FDA's recommendation on the grounds that "the data ... do not conclusively establish" that Plan B should be available OTC for "all girls of reproductive age." (15) The Secretary did not cite to any data inconsistent with the FDA's conclusion, but instead simply stated that the data supporting Plan B's safety and efficacy was inconclusive. (16) The decision by HHS to override the FDA's recommendation was unprecedented (17) and reflected a decision that, although explained at least in quasi-scientific terms, reflected what President Obama later called a "common sense" decision that would be consistent with the views of "most parents." (18) In short, HHS' decision is a clear example of politics operating at the expense of science. (19)

   It is far easier to offer examples of what this Article calls "counter-scientific" policy decisions--decisions that overlook otherwise uncontroverted scientific evidence in favor of political rationales--than to formulate a coherent set of parameters to define them. (20) In some cases it may be difficult to identify whether a particular policy decision includes an irreconcilable conflict between political and scientific justifications or just a more nuanced balancing between competing, but not necessarily mutually exclusive, considerations. There is also the problem that the best available scientific information is frequently inconclusive or subject to valid scientific counterarguments, such that it becomes virtually impossible to call any policy position truly counter-scientific. Notwithstanding these complicating factors, there remains a category of cases--characterized by the above examples--that, at minimum, reveals that direct conflicts between science and politics exist in administrative law and that such impasses are often resolved in favor of political, rather than scientific, factors. The question, then, is whether these counter-scientific cases raise issues of administrative legitimacy.

3. LEGITIMACY

   Conflicts between politics and science raise a number of normative questions that have been the topic of frequent and thorough scholarly debate. A topic that has thus far been under-appreciated is the effect of such conflict on the democratic legitimacy of an agency's policy decision. For sure, many agencies are constrained by statutory requirements that they consider scientific information in certain policy areas, but the legitimacy question is of a higher order of magnitude. (21) Because the administrative state is not explicitly provided for in the Constitution, (22) administrative law is under constant pressure to justify agency rulemaking, enforcement, and adjudication in a system where all three of those powers are expressly assigned to coordinate branches of government. (23)

   The principles of administrative legitimacy most directly implicated in conflicts between science and politics are expertise, accountability, and efficiency. (24) Agency expertise is a foundational principle of administrative law. (25) It reflects the often highly specific and technical mission of administrative agencies and the corresponding need for government officials with compartmentalized knowledge and experience in their delegated policymaking arena. (26) Agency expertise reached perhaps its legitimizing peak as part of the technocratic model of administrative law that arose during the New Deal, (27) yet it remains significant under other, more current models of administration (like public choice theory and civic republicanism) that depend on reliable inputs to inform the resolution of competing interests and viewpoints in policymaking. (28) This is especially true at the intersection of science and public policy, where the sound scientific inputs that result from expert agencies are critical to protecting the quality of the policymaking process.

   Accountability, which includes as a prerequisite transparency, (29) is also of...