Should Courts Defer to EPA’s Scientific Expertise if EPA Gets Rid of Its Expertise?

Posted on April 6, 2017 by Seth Jaffe

Earlier this week, the 9th Circuit Court of Appeals rejected challenges to the Federal Implementation Plan EPA promulgated after finding that Arizona’s regional haze State Implementation Plan was inadequate.  I think that the result is both correct and unsurprising.

However, one part of the opinion – a recitation of black-letter law – caught my eye.  In discussing the standard of review, the court noted that the arbitrary and capricious standard is “highly deferential.”  No surprise there.  It also noted that courts are particularly deferential when reviewing agency scientific determinations.  Also no surprise.

And yet….

What happens if EPA eliminates all of its climate science expertise, and then eliminates the Endangerment Finding?  Certainly, a court could still recite the traditional level of deference, but then note that “deference is not abdication” and rule that EPA’s decision must be reversed even under the deferential threshold.

And yet….

What happens if the Trump administration repeatedly makes regulatory decisions based on a “scientific” viewpoint that is so broadly rejected by the scientific community that “scientific” must be put in quotation marks?  Might courts at some point conclude that EPA has forfeited the deference normally given to agency scientific decisions?

Just asking.  It’s purely a hypothetical, of course.

Comments (2) -

John Hall United States
4/6/2017 1:21:26 PM #

You're not seriously arguing that the EPA -Obama administration used science to drive their regulatory agenda, are you?  In my personal experience in practicing for over 30 years, I had never before witnessed such complete departure from scientific principles as was occurring with the EPA Office of Water, that was run by former heads of environmental organizations whose concern over scientific defensibly was laughable. Numerous decision violated the laws of physics and when data conflicted with their desired action - they simply ignored it.

EPA took these actions knowing it could hide behind the deference standard to avoid any serious review of the chicanery.  That was a serious abuse of the standard of review which presumes federal agencies will not seek to purposefully misrepresent science.  Unfortunately, EPA under Obama became quite skilled at creating requirements that looked like science but would get an F grade from anyone knowledgeable about the scientific principles at issue.

I seriously doubt the Trump Administration could do worse.

Rick Glick United States
4/6/2017 6:17:11 PM #

Seth offers an interesting, perspective, as he is wont to do.  Much of the concern with Neil Gorsuch joining the Supreme Court is his skepticism of Chevron deference, a different kind of deference to be sure.  And yet . . .  If Seth's hypothetical comes to pass and agency "science" isn't deserving of deference, wouldn't it be ironic if those facts become the vehicle for the first case chipping away at the whole concept of agency deference, penned by Gorsuch, J.?  Maybe there really is a vast, right wing conspiracy!

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