Legal Aspects of the Regulatory Use of Environmental Modeling

October 2003
Citation:
33
ELR 10751
Issue
10
Author
Thomas O. McGarity and Wendy E. Wagner

I. Introduction

At the request of the Woodrow Wilson International Center for Scholars, we have analyzed the past 30 years of judicial challenges to U.S. Environmental Protection Agency (EPA) rulemakings to identify the types of constraints the courts impose, primarily under the Administrative Procedure Act (APA),1 on EPA modeling exercises. After outlining the litigation, we distill several major lessons from the courts' review of EPA models. We also consider the extent to which the Data Quality Act (DQA)2 might alter the legal landscape and conclude that with respect to the judicial review of modeling exercises, the DQA is likely to have a limited effect, at most.

A basic description of models, judicial review, and the limits of our study are provided briefly, before we delve into the details of judicial review.

Thomas O. McGarity holds the W. James Kronzer Chair in Trial and Appellate Advocacy at the University of Texas School of Law. Wendy E. Wagner is a Professor of Law at the University of Texas School of Law. The authors are grateful for helpful comments from participants at a workshop on U.S. Environmental Protection Agency models convened by the Woodrow Wilson International Center for Scholars, and especially thank Pasky Pascual for valuable comments on an earlier draft.

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