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

• Author: Meazell, Emily Hammond

When courts review agencies' scientific and technical determinations, they often emphasize that the specialized subject matter requires them to be at their most deferential. This "super-deference" principle seems appealing because it is supported by basic notions of institutional competence and accommodates a natural judicial tendency to avoid deep encounters with science. But it stands in stark tension with the expectation that courts must reinforce administrative-law values like participation, transparency, and deliberation. And it fails to further the legitimizing function of incorporating the best possible science into institutional decision making. Surprisingly, there is no scholarship comprehensively assessing super deference. This Article begins to fill that gap by evaluating super deference contextually, taking into consideration the norms of both science and administrative law. This analysis reveals that not only does super deference lack merit, it also lacks a clear meaning and a framework for principled application. Further, it has fallen into disuse, giving way to traditional hard-look review. Building on these observations, this Article develops a normative account of the courts' role with respect to agency science. When courts engage in such review, they can use their generalist perspectives to their advantage by serving an important translating function for generalist consumers such as Congress and the public at large--an approach that reinforces both scientific and administrative-law values.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND PRINCIPLES: AGENCY SCIENCE IN THE COURTS A. Judicial Review Under the APA 1. APA Basics 2. The Record on Review B. Constructing the Record: The Scientific Enterprise in Agencies 1. The Role of Policy in Science 2. Challenges to Agency Science C. Ossification, the Science Charade, and the Good Science Movement 1. Ossification 2. The Science Charade 3. The Good Science Movement II. SUPER DEFERENCE: A CRITICAL ASSESSMENT A. Historical Antecedents and Deference to Agency Expertise B. Baltimore Gas Scrutinized C. Progeny and Modern Applications 1. The Supreme Court 2. Initial Lower-Court Responses 3. Transitions 4. Modern Applications: Super Deference as Boilerplate and the Return to Hard Look III. COURTS AS TRANSLATORS CONCLUSION INTRODUCTION

In the quest for better alignment of science and administrative law, the role of the judiciary eludes easy assessment. The premise that expert agencies are better situated than generalist judges to make policy decisions in light of scientific uncertainty is an obvious enough starting place. Indeed, this view is encapsulated in the principle that courts ought to be at their "most deferential" when reviewing an agency's scientific determinations. (1)

This approach, which I refer to as "super deference," is appealing: it is supported by basic notions of institutional competence and plays into a natural judicial tendency to avoid any deep confrontations with science. If we are to believe observers of judicial science--not to mention the courts themselves--super deference has the salutary impact of shifting power over science from inept generalists to superior experts. (2) Broader administrative-law values support this view: if agency science is mostly about policy, and the politically accountable executive controls agencies, then agencies are the more legitimate institution with respect to science. (3)

A closer look, however, reveals a more nuanced picture. As noted by scholars in other contexts, extraordinary deference as a general matter stands in tension with the expectation that courts must reinforce administrative-law values like participation, transparency, and deliberation. (4) Not only do these values reflect the constitutional design, but they are buttressed by Congress's intent as expressed in the judicial-review provisions of the Administrative Procedure Act ("APA"). (5) And unlike the direct relationship between courts and legislatures when statutes are under review and deference is sometimes justified, (6) judicial review of agencies implicates all three branches because courts not only check executive power, but must also be mindful of legislative preferences. (7)

Further, administrative agencies cannot make an exclusive claim on science because science plays a legitimizing role throughout government. Suppose an administrative agency were to make a fundamental scientific error that becomes the basis of a regulation. A judicial rule requiring extreme deference--even to blatant scientific errors--would magnify those errors and produce unfair results. (8) If we want judicial review to enhance the legitimacy of agency action, we ought to think critically about whether super deference contributes to that end. If fairness and rationality are both furthered when agencies capture the best that science can offer, perhaps a more searching role for the courts--one that encourages agencies' principled use of science--is called for.

Adding to the intricacies, agency science is a peculiar product, quite removed from the traditional image of pure research science. It is laced with policy decisions at numerous levels, making it susceptible to misuse. (9) For example, interested parties and agencies alike are incentivized to cloak their policy choices in the seemingly unassailable mantle of science. The occurrence of this phenomenon in agency decision making is well documented. But neither the other branches nor the public is immune from this tendency to mistake policy for science. Calls for "good" or "improved" science in agencies are often motivated by the desire to change policy outcomes rather than agencies' use of flawed science in reaching them. (10)

Despite the scholarly literature's attention to the features of agency science specifically and the role of judicial review in administrative law generally, there has been no detailed examination of super deference as a principle in its own right. The courts persist in emphasizing it as a reason to avoid becoming too entangled in science, yet the few scholarly references are not focused on furthering our understanding of super deference. Two commentators lodged early criticisms in the wake of the modern super-deference case, Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., (11) but, of course, they could not evaluate how the principle was to be applied in years to come. (12) Otherwise, super deference is sometimes mentioned with criticism, (13) sometimes simply recited as a principle of judicial review, (14) and sometimes noted for the role it plays in judicial vacillation between "hard" and "soft" review (15)--but all in other contexts, with other focuses.

This gap in the literature is surprising because the stakes are high. Super deference is not grounded in realistic notions of agency science; (16) it may contribute to ossification (17) and the science charade; (18) and it appears to have a disparate impact on environmental law. (19) Measured against broader administrative-law values, super deference also inhibits transparency; (20) undermines deliberation; (21) fails to accord with political accountability; (22) and generally abdicates the courts' role in the constitutional scheme by encouraging outcome-oriented review. (23) For these and many other reasons, I contend that super deference has very little utility.

Given this conclusion, one might ask what should replace super deference: how should courts review agency science? A detailed review of how the courts apply super deference reveals a trend away from super deference toward hard-look review, albeit couched in super-deference terminology. This closer look reveals that traditional hard-look review can sufficiently protect administrative-law values while reflecting our instinctive notions about comparative institutional competence with respect to science. In making this claim, I am aware of a longstanding debate about the efficacy of hard look generally. (24) My aim, however, is not so much to enter that debate as to provide an account of the courts' role in reviewing agency science.

Indeed, I contend that the courts' comparative disadvantages with respect to science can actually enhance their role in the constitutional framework. Drawing on insights from political theory, social science, and the broader administrative-law discourse, I argue that thoroughly written judicial opinions serve an important function for science in our legal institutions. These opinions, written by generalists, necessarily reflect a generalist understanding of the science and policy issues present in agency decision making. That is as it should be, because they in turn provide important translations for generalist consumers--Congress, the public, the media, and interest groups--that can bring additional political checks to bear on agencies' decision making.

Part I of this Article lays the descriptive foundation necessary for assessing judicial review of agency science. It begins by outlining the relevant parameters of the APA, calling attention to the spectrum of scrutiny that courts bring to bear as they examine agencies for reasoned, science-based decision making. Next, it highlights the importance of the record on review, paying special attention to the science-specific features of such a record. This leads to a discussion of science in agencies generally. Even in the stereotypical, academic research setting, science is bound to policy--all the more so when marshaled to support agency action. Part II locates the modern super-deference case, Baltimore Gas, (25) in its historical and contextual place. A detailed look at the courts' subsequent treatment of super deference demonstrates that the principle has largely lost its teeth. Yet as Part III argues, this rich array of science-based caselaw provides a basis for thinking critically about the institutional role courts play with respect to agency science...