Chevron, State Farm, and EPA in the Courts of Appeals During the 1990s

April 2001
Citation:
31
ELR 10371
Issue
4
Author
Christopher H. Schroeder and Robert L. Glicksman

I. Introduction

Ten years ago, we analyzed how environmental policy, primarily as formulated by the U.S. Environmental Protection Agency (EPA), had fared in federal courts during the first two decades of the Environmental Era.1 Our primary interest then was to determine how emerging environmental values were being accommodated by federal courts when those courts reviewed administrative actions by EPA and other agencies charged with new environmental responsibilities. This Article updates, extends, and refines our earlier work using a different methodology and with related, but also different, objectives.

In this Article we analyze how EPA and the federal courts interact under two broad aspects of judicial review. First, we study EPA's and the courts' interpretations of the Agency's statutory authority, with special emphasis on how the Agency has fared under the Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., (Chevron)2 doctrine. Second, we study how well EPA's rulemaking satisfies the requirements of "reasoned decisionmaking" as set forth in [31 ELR 10372] Citizens to Preserve Overton Park, Inc. v. Volpe (Overton Park),3 Motor Vehicle Manufacturers Ass'n of the United States v. State Farm Mutual Automobile Insurance Co. (State Farm)4 and other decisions. The Article thus focuses on how EPA has fared under judicial review, rather than on how environmental values have been treated by the federal courts. In subsequent work, we plan to use these same data to return to this latter question, which was the subject of our earlier work, an effort that will include examining the ways in which political preferences of the judges affect their decisions.5

Christopher H. Schroeder is Professor of Law and Public Policy Studies, Duke University School of Law. Robert L. Glicksman is the Robert W. Wagstaff Professor of Law, University of Kansas School of Law. The authors thank Robert Drumm, University of Kansas School of Law, Class of 2002, and Charles Larsen, Nicole Wilson, Duke University School of Law, Class of 2001, and Ryan Vogt-Lowell and Greg Caplan, both of the Duke Class of 2002, for their valuable research assistance.

The authors also thank the participants in the conference, "EPA at 30," held at Duke University School of Law, Dec. 7-8, 2000, for their helpful suggestions, with particular thanks to Jody Freeman and Mary Beth Ward, who were commenters on a version of this Article which we presented there. Professor Schroeder has presented parts of this work to the Environmental Policy Workshop at Duke University, to the "Sustainable Governance" conference at Duke, and to a General Counsel's lecture at the U.S. Environmental Protection Agency. Our thanks to attendees at each of these events. Thanks also to Jay Hamilton, Sidney Shapiro, and Richard Levy for valuable advice. Statistical analyses in this Article were done by Emily Schroeder, who merits much appreciation for her assistance, and who, along with the others who provided advice, bears no responsibility for any errors. Part of the contents of this Article will be adapted as a chapter in the forthcoming book, EPA at Thirty, to be published by RFF Press/Resources for the Future, 2001.

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