Hard look review

1. Hard look review • Courts review challenges to agency policy choices using “hard look” review under APA Sec. 706(2)(a) • Review requires agency to provide: • Reasons for the decisions • Reasoned explanation • State Farm/Fox Television are the two major pronouncements at the SCT level on this review. • Obviously, there is some disagreement as to the deference (or rigor) this review entails – although both sides agree that it involves the methodology used above. • This disagreement is likely to continue.

2. Massachusetts v. EPA – the statute • CAA § 202(a)(1) – EPA administrator shall “by regulation” prescribe and occasionally revise standards applicable to “emission of any air pollutant” from new motor vehicles that “in his judgment cause, or contribute to, air pollution, which may be reasonably anticipated to endanger public health or welfare” • CAA § 7602(g) defines “air pollutant” as “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air” • CAA § 7602(h) defines “welfare” as, among other things, “effects on . . . weather . . . and climate”

3. Massachusetts v. EPA – more facts • Oct. 1999 – private organizations petition EPA to initiate a rulemaking to regulate greenhouse gas emissions from motor vehicles under § 202(a)(1) • Claim greenhouse gases are “air pollutants” that affect “public welfare” • Early 2001 - EPA initiates public comment • WH seeks guidance on certainties/uncertainties re science of climate change from NRC (during comment period) • NRC Report concluded that greenhouse gases were accumulating and contributing to rising temperatures • Sept. 2003 – EPA issues order denying rulemaking petition because: • (1) CAA did not authorize issuance of mandatory regs re global climate change • (2) even if it had that authority, EPA believed it was “unwise” to enact such regs at that particular time

4. Is EPA’s decision not to enact a rule arbitrary and capricious under “hard look” review? • On what factors does the EPA base its decision not to enact a rule regulating greenhouse gases? • Why does the majority reject reliance on those factors? • What does the statute require/say? • How do the factors relied on relate to the statute? • Why does Scalia think that agency’s decision survives hard look review? • Is his statutory reading literally correct? • Are there problems that arise practically?

5. Massachusetts v. EPA – judicial review of agency inaction • Conventional wisdom = it is VERY difficult to convince a court to review agency inaction (i.e., decision NOT to do something) • E.g., agency refusals to initiate enforcement actions are essentially UNREVIEWABLE • These are actions committed to agency’s discretion (MORE LATER) • BUT decision not to enact a rule may be reviewable – received “hard look” review in Mass. v. EPA • As a practical matter – courts are still likely to be deferential to agency’s discretionary decision not to enact a rule • BUT when the enabling statute specifically MANDATES that an agency regulate & the agency’ responds that it can’t or won’t or shouldn’t, it’s action will get some scrutiny to make sure it’s rational

6. Operationalizing “hard look” review – a summary • Critical question – did agency engage in reasoneddecision-making? • If so, court will uphold. • If not, remand to the agency, which can enact the same rule, which court often will uphold on a subsequent challenge if it believes the agency’s decision was well-reasoned. • How to apply hard look review? • Identify the statutory goal the agency is trying to implement • Identify the method used to implement statutory goal • I.e., particular regulation, adjudicative precedent, policy directive, etc. • Are there obvious alternatives to the agency’s chosen method? • Did the agency adequately justify its choice over alternatives? • Did agency ignore evidence or arguments of others? • Did agency ignore statutory mandate? • Does evidence support/contradict agency’s choice? • Did agency link its choice to the evidence/facts, etc., before it? • Did agency consider things that are irrelevant? • Does agency’s explanation make sense?

7. Judicial review of agency legal interpretations When agencies (1) enact rules implementing statutes, (2) issue rulings in adjudications finding that someone has violated a law they are charge with enforcing, or (3) issue an opinion letter as to how a law should apply in a given situations – they are interpreting the law. • To what extent should judges defer to agency interpretations of statutes – i.e., agency legal interpretations? • Judges have struggled with this issue for nearly a century: • Note the increased tension over deference to be given agency interpretations of law after the New Deal: • American Trucking: interpretation of statutes “exclusively a judicial function” • Nitrogen Products/Gray: SCT deferred to contemporaneous agency interpretation of the meaning of a statute that the agency was charged w/ implementing

8. Judicial review of agency legal interpretations before the APA – important cases • Hearst - why two different standards of judicial review? • SCT engaged in independent (de novo) review of the meaning of the statutory term “employee” (i.e., doesn’t encompass the common law meaning) • SCT gave substantial deference to the NLRB’s application of the definition of employee to “newsboys” • Skidmore v. Swift • What kind of deference does the SCT give the W&H Administrator’s Interpretive Bulletin (which interprets the term “working time” in the FLSA)? • Why/how is this deference different than in Hearst?

9. APA § 706 – judicial review of agency legal Interpretations • Section 706 – “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, . . .” • Makes clear that courts have final authority re interpretation of law • But it doesn’t set forth a standard of review: • Should courts review agency legal conclusions de novo? • Did the APA simply incorporate the relatively amorphous & multi-factored common law approach of Skidmore and Hearst? • Does Chevron – the modern approach –answer any of these questions?

10. Chevron v. NRDC – the facts • 1977 amdts to CAA imposed more stringent air quality requirements on states that had failed to reduce pollution levels below certain ambient standards in “non-attainment” areas • CAA required permits for construction/operation of “new/modified stationary sources of pollution.” • State could issue permit only if the proposed source met the new stringent requirements. EPA initially interpreted “stationary source” to include all individual pieces of pollution-emitting equipment within a plant • In a later rulemaking proceeding, EPA changed its position to use a “bubble” approach, which defined “stationary source” as the entire plant rather than an individual facility within a plant. • This change allowed plants to alter portions of their operation (as opposed to the whole operation) without getting a permit per 1977 amendments. • NRDC (environmental org.) sued, claiming that the agency’s new regulations violated the Clean Air Act.

11. Chevron – the test & it’s application • When a court reviews an agency’s construction of a statute which it administers, the court asks: • Has Congress spoken to the precise issue? If the intent of Congress regarding the precise question at issue is unambiguously clear, the court and the agency must give effect to that intent. • If the statute is silent or ambiguous to the precise question at issue, the court should defer to the agency’s construction as long as it is “permissible” or “reasonable.” • Application to the facts: • How does the Court apply prong 1? • How does SCT characterize the issue to be resolved? • Does it believe Congress has unambiguously spoken to that issue? Why/why not? • At prong 2, is the agency’s interpretation reasonable? What factors does the Court consider?

12. What is the purpose of Chevron deference and is it a good idea? • Why does the Court defer to agency legal interpretations of ambiguous statutes they administer? • Is such a delegation consistent with the notion that judges “say what the law is”? What reasons for and against such deference are there?