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No Road to Change: The Weaknesses of an Advocacy Strategy Based on Agency Policy Change

April 2020

Citation: ELR 10319

Author: Frank Sturges

The Trump Administration has aggressively rolled back prior administrations’ environmental regulations and natural resource policies, and critics of this agenda have turned to the judiciary. A remarkable string of federal court decisions has faulted the Administration for failing to follow the standard for agency policy change articulated in Federal Communications Commission v. Fox Television Stations, Inc. The aftermath of these decisions, though, has revealed legal and policy problems with that standard, including a lack of new procedures on remand; circumvention of public participation; an uncertain level of deference to agencies; the Administration’s efforts to weaken the standard; and the possibility that district courts may be out of step with how the current U.S. Supreme Court might view the standard. As a result, both defenders of the regulations and deregulatory interests have reasons to be wary. This Article uses the example of a proposed road exchange agreement in Alaska’s Izembek National Wildlife Refuge to illustrate and examine these problems. The Izembek story and other recent examples suggest that the surge in application of the Fox Television Stations standard may be short-lived, and that moving away from it could produce better environmental outcomes.

Frank Sturges is a third-year law student at Harvard Law School, where he is Editor-in-Chief of the Harvard Environmental Law Review.

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