Academic

Freeman & Vermeule on Massachusetts v. EPA

By Lawrence Solum

Jody Freeman and Adrian Vermeule (Harvard University - Harvard Law School and Harvard University - Harvard Law School) have posted Massachusetts v. EPA: From Politics to Expertise on SSRN.  Here is the abstract:

In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court held, among other things, that the EPA has statutory authority to regulate greenhouse gases under the Clean Air Act, and that the agency cannot decline to do so on political grounds. We analyze the logic of MA v. EPA and its broader implications for administrative law and regulatory policy. We locate MA v. EPA in the context of the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration. The majority's solution for this worry, we suggest, is a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies. Whereas a line of caselaw and commentary stemming from Chevron USA Inc. v. Natural Resources Defense Council sees presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic. Because the Court subjects the denial of a rulemaking petition to hard look review, we suggest that MA v. EPA is State Farm for a new generation.

And from the paper:

[A]gency decisions not to decide are (presumptively) subject to ?hard look? review.  At least absent a clear statutory command to the contrary, the reviewing court will require the agency to offer a nonarbitrary reason for the decision not to decide. One type of arbitrariness is legal error: agencies must consider only those factors made relevant by the particular statute at hand.  In other words, hard look review applies both to the agency?s decision about whether to make a threshold determination in the first place, and to the agency?s decision about whether the threshold has been crossed.  When making both the first-order judgment under section 202 and the second-order decision about whether to decide, EPA may not consider extraneous non-statutory factors such as foreign policy, or its preference for other regulatory or non-regulatory approaches that might fit better with the President?s priorities.  Rather the agency is to focus primarily on information, scientific uncertainty, and the costs and benefits of acquiring further information.  Does the state of the science enable the EPA to make a rational judgment now, in either direction, about the health and welfare effects of a given pollutant?  What are the costs of deciding not to decide, as against the informational advantages that would arise from postponing the first-order judgment until the science is solidified?

Highly recommended.

Full post as published by Legal Theory Blog on December 01, 2008 (boomark / email).