31 ELR 10125 | Environmental Law Reporter | copyright © 2001 | All rights reserved

Science, Agencies, and the Courts: Is Three a Crowd?

[31 ELR 10125]

WENDY WAGNER: Welcome to the Panel on Science, Agencies, and the Courts. This panel is sponsored by the Environmental Natural Resources Regulation Committee of the Administrative Law and Regulatory Section of the [American Bar Association (ABA)], and also co-sponsored by the Standing Committee on the Environment of the ABA.

My name is Wendy Wagner. I'm going to moderate the panel, and as the title of the panel implies, we're going to talk about judicial review of agency science. This isn't a new topic in administrative law, but over the past few years there have been some different developments in the courts that may ultimately change the way the courts review agency science in the future.

We have convened four panelists whom I consider to be the nation's top experts on the issue of judicial review of agency science. I'm sure all of you are familiar with these panelists, each of whom is extraordinarily distinguished, not only in this narrow area, but also in administrative and environmental law more generally.

E. Donald Elliott is our first speaker. He is currently a partner at Paul, Hastings, Janofsky & Walker LLP, Washington, D.C. He was a tenured professor at Yale Law School until 1993, but he continues to serve in an adjunct role there. Mr. Elliott was general counsel of the [U.S.] Environmental Protection Agency [(EPA)] from 1989 through 1991. His practice currently specializes in environmental and toxic torts areas, but he seems to find time still to participate in a number of academic conferences and continues to be prolific, writing more than 60 articles on various issues of environmental and administrative law. So with that, I will turn the microphone over to Don Elliott.

DONALD ELLIOTT: Thank you, Wendy. I want to talk about what I call the "science debacle" at EPA.

I think the central conundrum of U.S. administrative law has been how to meld politics and expertise. As recently as the 1960s and the 1970s, thoughtful people were concerned that experts might overwhelm democratic decisionmaking in a technocratic society. My old mentor, Judge Bazelon, called this threat "the perils of wizardry,"² or the notion that expertise might dominate our public decisionmaking. Now, a decade or two later, no thoughtful person could possibly think that we've got too much science in environmental decisionmaking. As Georgetown University law professor Steven Goldberg aptly put it: "Regulatory agencies are regularly accused of being 'captured' by industry, consumer groups, members of Congress or bureaucratic inertia. They are never accused, however, of being captured by scientists."³

The so-called endocrine destructor issue is a good example of too much politics and not enough science in our environmental decisions. The theory that low doses of certain chemicals might mimic hormones and disrupt the functioning of our bodies is frightening, but is based on experimental results that many scientific laboratories have tried and failed to replicate.⁴ Nonetheless, this poorly supported speculation is taken very seriously at EPA, and the Congress has even legislated about it.

Our public discourse in administrative law is increasingly dominated by politics and increasingly excludes science and expertise from playing an important role. I like the title of David Stockman's book, The Triumph of Politics (even though it was about another area of policy). What [31 ELR 10126] we're experiencing in environmental law is really "the triumph of politics," or conversely, the "rout and retreat of science" in environmental decisionmaking.

The decline of science as an important determinant in environmental decisionmaking is in many ways the underlying subtext of Justice Stephen Breyer's book, Breaking the Vicious Circle: Toward Effective Risk Regulation.⁵ In case after case, the book shows how decisionmaking, particularly in the environmental area, has become political and science has been precluded from playing its rightful role.

My belief is that what we're seeing in terms of the recent court decisions setting aside many agency decisions, particularly in the environmental area, is not the result of more stringent standards of judicial review or of judicial activism. Rather, I think it's a symptom of a more fundamental problem: science is being increasingly marginalized and is playing less of a role in the decisionmaking process, particularly at my old agency, EPA. In short, the courts are stepping in more because the agencies are ignoring science more.

Throughout my career I've been very skeptical of the role of courts in reviewing scientific and technical information. I have written a lot about that, and been active as an adviser to the Carnegie Commission and the Federal Courts Study Committee. I worked with Judge Bazelon on the lower court opinion in Vermont Yankee.⁶ All of this has led to skepticism about the ability of judges to penetrate to the merits of scientific and technical controversies. But I do have to admit there is a role for the courts when agency abuses become too extreme. Judge Wald got me to admit that a few years ago when we were on another ABA panel together. After hearing my spiel about how judges can't really understand the scientific issues, [she] said: "Well, you will agree with me, won't you, Don, that we're better off with [courts] reviewing [agencies], to really get at the extreme abuses." I had to admit that she was right. What we're seeing now is that a string of court decisions that are setting aside EPA decisions because the Agency has really gone too far in disregarding science.

I want to talk a bit about what I think may underlie some of those developments, and potentially what we might be able to do to return science to its rightful role.

I am somewhat skeptical about claims that the stringency of judicial review is changing because of the empirical study that Peter Schuck and I did of judicial review that was published in 1990.⁷ What our data showed was that the affirmance and reversal rates tended to be relatively durable over time, and that affirmance rates were actually higher during the so-called hard look era of supposedly stringent judicial review. We concluded that one can't judge the actual stringency of judicial review by looking at a few "leading cases" because they are really just the tip of the iceburg.

Nonetheless, I believe that some of the decline in the role of science in environmental decisionmaking experienced in recent years is a consequence of a highly deferential standard of judicial review on scientific and technical information. I trace this deferential standard back to the Baltimore Gas⁸ case, which was a decision by the U.S. Supreme Court on the merits of the Vermont Yankee litigation.

After the Vermont Yankee case went back on remand, and the D.C. Circuit tried a second time to say that the Nuclear Regulatory Commission [(NRC)] had not given proper consideration to the long-term disposal of nuclear waste, this time on substantive grounds.⁹ The Court reversed a second time, essentially throwing Judge Bazelon's words back at him and stating that the Court's deference is highest in areas in which cold war agencies are making decisions at the "frontiers of science."

The high level of deference that courts give to agencies in technical areas has produced distorted incentives. It is an open invitation to agencies to make decisions on political grounds but rationalize them on technical grounds. Wendy Wagner calls this the "Science Charade" in her very important piece in the Columbia Law Review.¹⁰ Professor Wagner has correctly identified the incentives that the courts have created for agencies to distort the actual basis of their decisions by rationalizing them on technical grounds. This is simple to analyze as a matter of law and economics; if one creates a standard that is highly deferential in one area, i.e., there are lower costs for agencies if they ground a decision on scientific grounds, one would expect that the incentives created would warp their decisions.

In my experience at EPA—where I was in many meetings with the Administrator or Deputy Administrator when options were presented to them for decision—I cannot remember a single case in which there was a significant discussion of the underlying scientific emphasis.

Now, that doesn't mean science was irrelevant to Agency decisionmaking; that conclusion would be too extreme. Perhaps science sets the outer parameters of discourse, the range of options that are considered.

But there is no doubt in my mind that our public discourse is distorted by the "science charade" as a result of the greater deference that courts give agencies if they rationalize their decisions on technical rather than policy grounds. As a result of the more deferential standards for technical decisions, the written opinions that state the "basis and purpose" for Agency decisions often end up justifying a policy outcome based on a discussion of science.

Wendy's insight is that we've got a fundamental disconnect in American administrative law between the real reasons for Agency decisions—as reflected by the policy debate within the Agency and within the government about [31 ELR 10127] why we make a decision—and the quite different rationale that ends up in the written statement of reasons to justify the Agency's decision. And, of course, it is the Agency's contemporaneous statement of reasons that usually becomes the sole basis for judicial review.¹¹ What ends up in the statement of reasons to justify it, in turn becomes a subject of judicial review.

In general, at EPA, the decisions are written by people who weren't even in the room when the Administrator made his or her decision. I would usually go back and give the lawyer in the General Counsel's office who was going to write up the decision one or two sentences on what I took to be the essence of the Administrator's decision, in the hopes that it might kind it [sic] into the written statement of the Agency's reasons for purposes of judicial review. But there is a massive disconnect between what agencies think about internally and what they say in justifying their decisions. This disconnect should be very troubling for proponents of judicial review. In my view, judicial review has almost become a form of literary criticism, focusing on the skill of the Agency's lawyers in writing up opinions, rather than the rationality of the actual basis of Agency decisions, because the courts rarely see the actual basis for the Agency's decisions.

In a sense, the culprit is the Morgan¹² rule, the notion that you can't go behind the agency's statementof reasons, because that has created a distance between the actual grounds of the decision and the stated basis. Courts should not defer to agency decisions on the grounds of scientific expertise if all of the scientists within the agency dissented from the decision.

There are a lot of costs to the "science charade." Public dialogue and peer review of agency decisions are stifled if agencies misstate the true basis for their decisions. Many environmental scientists criticize EPA for misunderstanding the science. That's rarely the problem. In my experience, someone within EPA understands the science quite well. If the science gets mangled along the way, it is because the scientists aren't writing up the Agency's rationale; the lawyers are, and the lawyers perceive their role as that of advocates who must justify the Agency's decision on the grounds that are most likely to be sustained in court. Thus, the "science charade" creates pervasive confusion, and a warping or distortion of public dialogue about environmental issues.¹³

Nonetheless, despite the growing disconnect between real reasons and stated reasons in Agency decisionmaking, judicial review does, to some extent, constrain the Agency. Let me mention just one example, the recent chloroform decision.¹⁴ EPA had for many years maintained that there were no thresholds for the activity of carcinogens, i.e., there are no "safe" levels of exposure. As science developed, the mechanisms of carcinogenesis became better and better described, and the mechanisms of repair at the cellular level also were better understood. Science reached the conclusion that, at least with certain chemicals, there were levels of exposure below which there would not be a significant effect, and this became a broad scientific consensus, at least for some substances.

Chloroform is one of the substances for which thresholds had been demonstrated scientifically and broadly accepted by scientists, including EPA's scientists. Despite widespread recognition of that consensus, EPA stuck with its policy of setting maximum contaminant levels (MCLs) at zero under the Safe Drinking Water Act (SDWA). That decision was, of course, then set aside by the D.C. Circuit as capricious and arbitrary and not supported by the record.

But this is to me an example of EPA systematically disregarding, if not defying, the science. I remember one incredible meeting at EPA that crystallizes my conclusion that science is not playing the role that it ought to within the Agency. There's a separate office at EPA called the Office of Research and Development (ORD), which is really the science office. The name is interesting—Office of Research and Development. In my opinion, it should really be called the "Science Office." Nonetheless, it's where pure science is housed at the Agency. During a "red border review," in which a program office circulated its proposal for comment by all the other offices, we were in a meeting with the Deputy Administrator. The specific subject of the meeting doesn't matter. Following the meeting, the representative of ORD, who had not said anything during the meeting, came up to me in the hall and said, "Don, how could you let that happen? You know that this decision is not supportable at all from a scientific basis." My thought in reply was "Why does the representative of the science office not dare to say anything in the meeting, and then beats on me, as the general counsel, afterwards to carry the ball for science." To me, this vignette illustrates how cowed science has become in the internal debates at the EPA.

When I left EPA one of my biggest priorities was to try to figure out how we could increase the role of science at EPA. I believe that this should be the highest priority for the incoming Administration, to restore science to its rightful role at EPA.

The challenge is to get more science and better science into EPA decisions. I tried to look around for some success stories. I believe that as a research academic strategy one should ferret out cases in which things work reasonably well, and then figure out how to replicate success. It struck me that we have an agency that's quite similar to EPA, but whose decisions are very credible scientifically—the Food and Drug Administration (FDA). There are a lot of criticisms of the FDA—that it's too slow, that it doesn't get drugs on the market soon enough—but it's very rare that FDA's decisions get attacked for disregarding the science, [31 ELR 10128] or for not being science-based. EPA has a lot to learn from FDA about how to create an agency culture that is more science-based.

Now, admittedly, there are some important structural differences between FDA and EPA. For one thing, FDA doesn't have environmental groups, at least to the same extent, involved in making policy. But I don't actually blame the environmental groups for the low level of scientific discourse at EPA. I think that they, like industry, have simply adapted to the current nature of the discourse.

When my friend Fred Krupp became the executive director of the Environmental Defense Fund [(EDF)] a number of years ago, we were riding back on the plane from New Haven together. He said, "well, what do you think I should do?" I replied, "Hire some scientists and economists," and he did. I'm sure other people gave him that same advice, but EDF (now ED) has been very successful at using more scientists and economists as environmental advocates. So I disagree with those who would say that "good science" is inherently biased in favor of industry.

One of the reasons that environmental groups and companies do not invest more in scientific discourse at EPA is that it is not the coin of the realm. It is simply not the basis on which decisions are made. So they're in a sense adapting to the culture of the place.

There are three quick points that I would like to make about what we might learn from the FDA example, how we might improve the role of science at EPA. First, consider the personnel. We've never had a scientist as the Administrator of the EPA. That's quite remarkable. My boss, Bill Reilly, was a lawyer, but he also had an M.A. in city planning from Columbia, so that's about as close, I think, that we have gotten to a scientist. Meanwhile, David Kessler, who is both an M.D. and a lawyer, was the head of FDA and is now the dean at Yale Medical School. Carol Browner was formerly a congressional aide, and I didn't actually hear Carol make this point, but she is reputed to have said in a meeting that she regards science as just another pressure group. If science is regarded as just another interest group, that partially explains the problems that we have.

We have had a number of assistant administrators at EPA, such as Lynn Goldman, Bernie Goldstein, and Jack Moore, who have had a scientific background, and I think their background shows in the quality of their decisions. I don't agree necessarily with the decisions that they have made, but their decisions have been science-based and serious about the evidence, in a way that I don't see many other decisions at EPA as being.

But the personnel issue is obviously not just concerned with the political appointees at the top. When EPA was formed in the 1970s there were 360 public health officers at the Agency. There are only a handful, if any, today.

The second major thing I think that needs to happen is that the ORD needs to be reinvigorated. It ought to be reorganized, and renamed as the "Science Office," not just the Office of Research and Development, but the Science Office, and they ought to put somebody in charge of it who is a vigorous policy advocate as well as a scientist.

The Science Office at EPA ought to have a veto over the Agency's decisions on scientific grounds in a way that the economists had a veto over decisions in the past.¹⁵ And until there is a group that is serious about science, that has the ability to stop decisions that are not respectful of science, I don't think things are going to change.

The third point is we need to find ways to build science into the decisions, rather than tacking them on at the end as a judicial review measure. The Clinton Administration took a very useful and courageous act in its Executive Order mandating peer review,¹⁶ but one of the problems with peer review, like Office of Management and Budget (OMB) review or judicial review, is it comes at the end of the line, and tries to knock out bad decisions, rather than building in good decisionmaking from the beginning. Elsewhere¹⁷ I've argued—building on the "total quality management" literature by Demming and others—that you can't inspect quality at the end of the line; you have to build it in from the beginning. While it would be helpful to have better peer review, and to have a reinvigorated Science Office, we also have to change the culture of EPA so that decisions are science-based from the beginning.

An irony here is that one of the significant differences between EPA and [the] FDA is that at EPA, science decisions are institutionally separated from political decisions. They're kind of tacked on at the end. This, I think, comes in part from Bill Ruckelshaus' famous distinction between risk assessment and risk management,¹⁸ the notion that we need to separate science and values. I think that's an entirely valid point, as an analytical one, but it doesn't follow, in my view, that a separation between science and policy ought to be reflected in the internal organization of the Agency. By separating the scientists from the policy process, we've marginalized them. One example of that is when Bill Reilly asked the Science Advisory Board (SAB) to make recommendations for risk reduction. There was a big debate within the SAB as to whether or not the board would be willing to make a policy recommendation, because [31 ELR 10129] there was such a strong culture of separation of science and values.

Now, contrast that with the FDA where, rather than having a program office that's political, and then tacking on science by "peer review," science is an integral part of the process. Many of the agencies that use science successfully integrate it into the policy process by creating "advisory committees" of outside experts that recommend policy to the Agency, such as the Advisory Committee on Reactor Safeguards at the NRC. In contrast, it merits noting that one of the ways that peer review is conducted at EPA under the Executive Order is to hire a consulting firm.

Let me close by saying that I don't believe judicial review is the complete answer. We also need to change the internal culture and structure of the Agency. And I would respectfully disagree with my friend and colleague from the last Bush Administration¹⁹ about Daubert²⁰ being the solution. I don't think courts can solve the problems of administrative agencies, but I do believe that the recent spate of court decisions setting aside EPA decisions on scientific and technical grounds is a symptom of a fundamental regulatory disease, which reflects the diminished role of science at EPA.

I very much hope the next president will correct the situation. Thank you.

WENDY WAGNER: Thank you very much.

Our next speaker is Alan Raul. He is a partner at Sidley & Austin, and has written a number of influential and provocative briefs, congressional testimony, and articles on the subject of the judicial review of agency science.

Before becoming a partner in Sidley & Austin, Mr. Raul had quite an impressive career inside government. He first served as an associate in the Office of White House Counsel under President Reagan. He then served as General Counsel at OMB from 1988 to 1989, and subsequently was General Counsel at the [U.S.] Department of Agriculture (USDA) for another four years, from 1989 to 1993.

Perhaps equally impressive is the fact that Mr. Raul is not only a formidable force in the environmental law area, he also specializes on issues of the Internet, and coordinates the E-commerce practice group at the Washington office of Sidley & Austin. So welcome, Alan.

ALAN RAUL: Thanks, Wendy.

I propose the use of what I will call "regulatory Daubert" as a principle for judicial review of agency decisionmaking in the scientific realm—not as a solution, but as a reform to enhance agency decisionmaking, to refine judicial review, and to promote accountability, which I think really is the most significant aspect of the issue.

I think in part there is a fallacy of the degree of effectiveness of presidential and congressional oversight with regard to agency rulemaking in general, and perhaps environmental decisionmaking in particular. The principle that has been articulated in the Chevron²¹ decision of the Supreme Court and many other decisions, namely that policy decisions, including those of bureaucrats in the executive branch, should be left to the political branch and not displaced by the preferences and policy choices of judges, is quite correct, quite appropriate. But it is grounded in the notion that there is political accountability for the regulatory decisions made by agencies such as EPA, and that premise can be dissected and challenged and determined to be not entirely substantiated.

For some of the very most important regulatory decisions that an agency like EPA makes, you will get interest of the White House, although their ability to affect the outcome is limited; you will get some congressional oversight, through the Congressional Review Act,²² which specifically empowered Congress to enact legislation to overturn rules.

Of course, Congress has the power under the Constitution to reject regulations, whether or not it utilizes a specific statute such as the Congressional Review Act. But while Congress has established procedures through the Act to review regulations, not a single rule has been taken to a vote in either House. There have been some measures introduced regarding final regulations, but not once has a measure come upon to a vote in either chamber.

So while the Chevron notion of deference assumes there is political accountability for policies that are adopted by regulatory agencies through the legislative and executive branches, the assumption does not withstand close scrutiny.

What, then, is the problem that a regulatory Daubert solution would solve? As Don indicated, EPA is subject to rather intensive judicial review, in the D.C. Circuit in particular, and in other courts of appeals and district courts as well. That review has resulted, perhaps recently to an even greater extent, in reversals of the Agency's decisions at a remarkably high rate.

Jonathan Adler has documented²³ an appellate reversal rate of EPA that is much higher than would be expected under the Chevron deference that is, at least in principle, accorded to the Agency. EPA is reversed frequently on scientific grounds, regardless of the courts' references to "extreme" deference, on scientific questions. The agency is reversed in the D.C. Circuit a lot, and is not treated with kid gloves.

By importing Daubert-type principles into judicial review under the Administrative Procedure Act (APA),²⁴ [31 ELR 10130] we can better define the principles of judicial review, make them more consistent, and better advise the Agency, the public, and the Congress of the standards EPA, as well as the Supreme Court, should apply in the review of regulatory science.

The Court, as we're all well aware, in four decisions that began with Daubert, followed by Joiner,²⁵ Kumho Tire,²⁶ and most recently Weisgram v. Marley Co.,²⁷ has empowered federal judges to take a more influential role in assessing the methodologies and principles that are at stake in civil litigation under the Federal Rules of Evidence. Now certainly the APA, but not the Federal Rules of Evidence, applies to judicial review of agency decisions. Trials are not conducted, and agency decisions are reviewed by courts based on the administrative record produced by the agency itself. Under Chevron and other decisions, there is great deference that is accorded to the agency decisions; judges are specifically enjoined from substituting their own preferences and choices in place of those of the agency.

So an agency that is merely wrong on the law, or merely wrong on the science, will not be reversed pursuant to the APA. Instead, an agency needs to be "really, really wrong" in order to be reversed, a standard that is often called "plainly erroneous" or otherwise "arbitrary and capricious." But I think that the legal test really boils down to whether the agency is "really, really wrong," and, as Don Elliott has noted, there is ample evidence in EPA's track record that they are often really wrong—really, really wrong.

The Chlorine Chemistry Council²⁸ decision is indeed an example of the disconnect between science and the Agency's ultimate decision. There, the D.C. Circuit overturned an SDWA regulation of EPA. The preamble to the Agency's rule, a statement of basis and purpose, made it perfectly clear that the science supported the existence of a threshold in the carcinogenic properties of chloroform, but nonetheless the Agency said that it was going to stick with its old policy, instead of going with the available science. The EPA rule which ignored the best available science was struck down.

It would be interesting to consider whether the D.C. Circuit would have struck down that disconnect between the Agency science and its decision, but for the fact that the SDWA has a specific statutory "good science" mandate. The Agency had been specifically directed by Congress to apply the best available science, subject to objective peer review.

In the absence of such a specific science mandate, would the court have said, "well, you know, you've told us what the science is, you've told us what your policy is; what are we going to defer to, your scientific view or your policy view"?

I think that Wendy would argue, although she can speak for herself, that where the policy preferences are fully disclosed, and the assumptions are fully disclosed, there ought to be deference to the Agency. I believe that position is largely sound. So what would Daubert-type principles accomplish when Congress has not mandated specific scientific principles for agencies and reviewing courts to apply?

Applying regulatory Daubert would promote the full disclosure of all of the Agency's underlying principles, assumptions, and facts and obligate the Agency to come completely clean on the foundation for its scientific decision. Following that full disclosure, the Agency is entitled to policy deference on the scientific foundation for its decisions.

The question has to be asked about how Daubert-type principles would function in the judicial review context, given the distinction between the Federal Rules of Evidence and the APA. I submit that under Supreme Court and D.C. Circuit and other appellate court precedents, in particular Motor Vehicle Manufacturers v. State Farm,²⁹ regulatory Daubert can easily be imported into judicial review under the APA. Reasoned decisionmaking, the requirement for sound documentation and substantiation, and the important role of judicial review in maintaining accountability, all point in the direction of a need for more probing review of the Agency's scientific methodologies and principles.

The goal for incorporating a regulatory Daubert approach would be not only to encourage less deference and more probing judicial review but also to establish more consistent standards. That way, it wouldn't always be a roll of the dice as to which judicial panel you get, or what appellate or district court you're before, as to how intensive the judicial review of agency science will be.

If the agencies, EPA in particular, know that reviewing judges are empowered with Daubert-type inspiration to look closely at the science underlying the decisions, agency decisionmaking will improve. The documentation will be better, the explanations will be better, the defaults, the policy choices, and the uncertainties will all necessarily be disclosed and subjected to greater scrutiny, because the agency will know that it's not going to survive in court if it doesn't come clean on those factors.

And of course, if it comes clean on those factors, the opportunity for public accountability—public scrutiny through Congress, through the media, the White House—will all be enhanced at the same time.

At this juncture I would like to respond to Don Elliott's point that there is a distinction between the EPA and FDA statutory frameworks; a distinction that is relevant to the perception that science at [the] FDA is superior to science at EPA. Many of the EPA statutes either specifically preclude the consideration of cost-effectiveness and efficiency in decisionmaking, or have been interpreted as precluding consideration of a cost-benefit balancing. So this leads in many cases to a charade, where the Agency, as Don [31 ELR 10131] indicated, is not making a decision based on the factors that it claims to be making the decision on, because consideration of cost is essential to any public policy decision. If there were no real consideration of cost then the only democratic and moral alternative would be to set health protections, to set pollution levels, at a level stringent enough to protect every last American from every last adverse health or other environmental impact.

The fact of the matter is that in real life there has to be balancing. In the FDA context, with regard to the approval of new drugs, the balancing is perfectly manifest. Every new drug is going to have some adverse side effects. There are going to be some risks. And in exchange for incurring those risks and imposing them on a statistically anticipated—although hopefully small—percentage of the population, there will be benefits that will be accorded to the much greater percentage of the population, who will benefit from the approval of the new drug.

That same type of analysis ought to be appropriate, I would submit, in the environmental context, but because of the way the statutes have been interpreted, the opportunity for balancing overtly has been denied to EPA. As a result, the Agency needs to dance around the true bases for its decisions. So with regard to my proposal that Daubert-type principles be incorporated into administrative law, one of the beneficial results would be to promote EPA disclosure of the true bases for its decisions.

What would a Daubert regulatory standard specifically do? It would ensure that the reviewing court looks at the science that the agency has relied on to assure that it's relevant and reliable for the matter at hand. That would, in a nutshell, promote reasoned decisionmaking, which is what the APA is all about.

The reviewing judges wouldn't substitute their own conclusions, so there would be no conflict with either what the Supreme Court has articulated as Daubert principles, or with what the Court has required under the APA in Chevron, State Farm, and many other APA cases.

Now, why is this important? It is because the science that underlies the decisions, and the decisions that EPA and other agencies make based on science, are crucially important to society. If getting science right, or increasing the likelihood that the science is relevant and reliable, is an important objective in the case of litigation between two private litigants who are adjudicating a product liability or other tort action, if that's important, surely it's also important what science EPA relies on when it imposes tens of billions of dollars of cost on society under the Clean Air Act rules, and protects thousands or millions of people under those rules, as well.

So it's arguably much more important that the regulatory science be as good as possible, and that the public appreciate the relevant weaknesses in the Agency science, than the science used in civil litigation.

Does the EPA have a problem on the science front? I think that, as Don Elliott indicated, there is a problem with science. He spoke of being in meetings at the highest levels during which science was not even discussed as a basis for the decision.

In 1992, EPA Administrator Reilly received a report from an expert commissioned panel. The report was called Safeguarding the Future: Credible Science, Credible Decisions.³⁰ The report said that "EPA is not always assured that contrasting reputable scientific views are well explored and well documented from the beginning to the end of the regulatory process."³¹ It went on to note that "EPA science is perceived by many people, both inside and outside the agency to be adjusted to fit policy. Such adjustments could be made consciously or unconsciously by the scientist or decisionmaker."³²

So in 1992 the Agency itself recognized that it had a problem with regard to the objective nature of its own science. Wendy Wagner has documented the problem brilliantly, and the courts have recognized this, as well.

The D.C. Circuit in the 1994 Chemical Manufacturers Ass'n v. EPA³³ case concluded that EPA demonstrated a "let them eat cake" attitude towards science, by disregarding the question of whether the pollutant in question was a science or gas in its findings in its dispersion model. The court basically said, "well, of course, models are not going to fit precisely, that's why they're just models, and you fit the facts, the science, as best you can to your model. But if your model is not taking account of whether the pollutant in question is a solid or a gas, and you've been put on notice that it's one, to act as though it were the other really demonstrates a 'let them eat cake' attitude."

But having said that there are some courts that have taken the Agency to task for scientific inadequacies, there are numerous other panels, including some in the D.C. Circuit, where "extreme" deference has been the conscious principle for judicial review. In light of the Agency's problematic relationship to science, and the Supreme Court's comfort level in the Daubert line of cases in empowering judges to evaluate scientific methodologies and principles, this "extreme" deference is clearly inappropriate, and results in inadequate accountability of the Agency for its scientific decisions.

I should note two developments with regard to the Daubert analogy in administrative law; two cases specifically decline to apply the rationale in regulatory litigation. A Seventh Circuit case³⁴ and a district court case³⁵ declined to apply Daubert in the APA context, indicating that even though Daubert could result in better decisionmaking and better agency documentation, the standard would be too intrusive and inconsistent with the degree of deference that the [31 ELR 10132] agencies are entitled to. On a more favorable note, however, in the American Trucking Ass'n (ATA) case³⁶ the D.C. Circuit did, in fact, cite Daubert in the context of the Clean Air Scientific Advisory Committee's [(CASAC's)] advice to the administrator on the role of science.

One last point on the Supreme Court's likelihood of accepting Daubert in the administrative law context. In Daubert itself, the Court cited a book by Sheila Jasanoff³⁷ regarding peer review of agency science in the federal decisionmaking process. The citation occurred in a context of the Court considering the importance of peer review in reviewing science in civil litigation. The Court's reliance on a regulatory science book in Daubert suggests that the Court would not be hostile to the notion that Daubert-type principles ought to have a role in judicial review of agency decisionmaking. Thank you.

WENDY WAGNER: Thank you Alan.

Professor Richard Pierce is our third panelist. Professor Pierce is the Lyle T. Alverson Professor at George Washington University (GW) Law School. Before joining the faculty at GW, Professor Pierce already enjoyed a distinguished career as an academic. He has been a professor at the Columbia Law School, the University of Virginia Law School, Southern Methodist University Law School, Tulane University Law School, and the University of Kansas Law School, and has served as the Dean of the University of Pittsburgh Law School.

Professor Pierce has written several books and many dozens of influential articles that raise critical insights about a variety of topics in the areas of regulation, administrative law, torts, and judicial decisionmaking. While he is clearly one of the nation's top experts on the judicial review of agency rulemakings, he is also a top expert on a number of other topics as well.

RICHARD PIERCE: Thank you, Wendy. I'm going to use the American Trucking case to illustrate some of the problems that I see with the current uses of science in agencies and courts.³⁸ As many of you know, the Court has, in effect, agreed to review two different D.C. Circuit decisions in the ATA case.

The first is the 1999 decision of the D.C. Circuit in which the court held that EPA's interpretation of § 109(b) of the Clean Air Act (CAA)³⁹ is unconstitutional. The Court also has agreed, in effect, to review the 1980 decision of the D.C. Circuit in which the court, ironically, adopted the interpretation of the CAA that it held to be unconstitutional in 1999. In that 1980 decision, Lead Industries Ass'n v. EPA,⁴⁰ the court interpreted § 109(b) to require EPA to focus exclusively on health concerns in setting primary ambient air standards, and precluded EPA from considering cost.

Now, looking at this case, and starting at the beginning with the Agency actions, I can identify a couple of problems I see in the Agency actions themselves. The EPA actions consisted of two rules: a rule that established a new primary ambient standard applicable to ozone,⁴¹ and a rule that established a new primary ambient standard applicable to particulate matter.⁴² EPA, in the thousands of pages of explanations that it provided for those rules, made two basic points that trouble me.

First, it said we don't consider the cost of setting standards, and we haven't in this case. Second, it said "we set these primary ambient standards solely to protect public health, and they do." Well, both of those assertions are just demonstrably false. They are just absolute fibs. They cannot be true, and here is some of the evidence to support that.

First of all, EPA prepared a 718-page cost-benefit analysis of the two rules.⁴³ It says it didn't read it, and didn't consider it, okay? Well, come on. That's ridiculous. I mean, I got it with three clicks off of the Internet. Nobody can convince me that not a soul in a decisionmaking capacity at EPA, on its advisory committee, in OMB, or in the White House bothered to hit the three clicks on their computer to get that 718-page document. That's not credible.

To support that conclusion, let me tell you that I have had numerous, both past and present, EPA decisionmakers tell me off the record, well, of course we look at those things. Would you ignore something that tells you $ 20 billion here, $ 10,000 over here? No. You would look at it, and indeed they did.

The second piece of evidence: EPA couldn't possibly have chosen the standards it chose without considering costs. EPA's announcements of benefits shows, among other things, that if it had chosen a more stringent particulate standard, a tougher particulate standard, it would save several thousand more lives per year, and they estimate the health benefits of a more stringent standard at $ 4 billion per year. Now, assume that it costs nothing to establish a more stringent particulate standard. Any human being would say, I will choose the more stringent standard. The only way you can get from the data before the EPA to the standard they chose is through the consideration of costs.

Of course they considered costs. Unfortunately, they aren't going to say that. They have to disguise the actual basis for their decisions because of some combination of the language in § 109(b) and the D.C. Circuit's 1980 decision interpreting that language.

[31 ELR 10133]

Now, turn to the ATA decision itself, the 1999 decision. The first thing—I'm sure most of you know this, but I want to make sure everybody does—the court did not hold that § 109(b) is unconstitutional as a standardless delegation of power to an agency. That would be certainly an unusual decision, only the third time any court had ever done it in 200 some years, but that isn't what the court did.

It couldn't possibly do that, because the standard in § 109(b) is actually much more precise than scores of standards that the Supreme Court has upheld under the nondelegation doctrine. In fact, the problem with § 109(b), at least as it was interpreted by the D.C. Circuit in 1980, is exactly the opposite. It is not too broad a delegation of powers, it's far too narrow a delegation of powers. The court in Lead Industries said you can't consider cost; that is the opposite of the problem that arises and is responded to by the nondelegation doctrine. So what did the court in ATA do? It held that EPA cannot set primary air standards unless and until it adopts "determinate binding standards" that both it and reviewing courts can apply to say how much pollution is too much.

I've got three basic problems with that holding. First of all, it obviously is a complete disconnect with the nondelegation doctrine, the purpose of which is to force Congress to establish meaningful standards in statutes. The court's approach doesn't do anything in that regard. Second, there is simply no standard that would satisfy the court's mandate. With respect to both the effects of pollutants on human health, and the social value of human health, there is no way to implement a determinate binding standard that will tell us how much pollution is too much. Third, the only standard that would come close to satisfying both the criteria identified in ATA, and in Lead Industries, would require complete deindustrialization of the United States.

To the extent that we have data relating to the health effects of these two pollutants, the presently available data indicates that there is a spectrum of health responses at every level of exposure, every level of concentration of these pollutants, all the way down to, and some of the data suggest, even below, the baseline level of these pollutants produced from nonanthropogenic sources.

I'm not a big fan of that opinion, as you can tell, but even with those big flaws, I think the D.C. Circuit makes a really good point—a point that EPA really was not in a position to address effectively given its role in government, but one that the Supreme Court can address in a constructive manner. EPA does not, and cannot, provide a rational explanation for its choices of primary air standards. I think one of the reasons the Agency had 3,000 pages of explanation is that if they provided the short explanation, it would be patently silly; EPA needed 3,000 pages to cover up the fact that it wasn't doing what it said it was doing. That is a true problem. In order to figure out what can be done about this constructively, the first step is to figure out exactly what EPA is doing in cases of this type.

EPA is making policy decisions by making trade offs between public health goals and economic goals, in conditions in which the relevant relationships and values are so uncertain that it necessarily has a great deal of discretion to choose where to draw the line in making those trade offs. That's what it is doing. Now, that's an entirely appropriate function for an agency to perform, and the Supreme Court has said so in at least a dozen cases. Indeed, the Court legitimated that practice in Chevron by attributing the Agency policy decisions to the politically accountable president.

Now, you really can't take that attribution seriously in the case of all agency policy decisions. The president undoubtedly is unaware of the vast majority of them. But when it comes to a decision of this magnitude, where you're talking about scores of billions of dollars on one side and tens of thousands of lives on the other, you bet the president is involved. I'm quite certain that President Clinton was involved in this decisionmaking process. I hope he was, and I'm quite certain that he did what the D.C. Circuit has referred to in a complimentary fashion as "jawboning," namely to induce the Agency to act in a manner that is consistent with the values and preferences of the president.

That's 100% legitimate. The problem is, EPA can't say that's what it's doing. If it did so, it would be admitting that it has acted in a manner inconsistent with the D.C. Circuit's 1980 interpretation of § 109(b). EPA must instead say that it is doing something that it cannot possibly be doing, choosing standards that achieve public health goals in some absolute sense without any consideration of cost.

So what can be done about this? The Supreme Court is in a position not necessarily to solve the problem, but certainly to reshape it in a very constructive way. I think the Court should reverse both the 1999 ATA decision and Lead Industries. It should base its reversal of the 1980 decision on the canon of construction the D.C. Circuit has applied in four cases in the last two years. That canon is that it will not attribute to Congress an intent to forbid an agency from considering the cost of its actions absent "clear congressional intent … to preclude consideration of cost."⁴⁴

Most recently, the D.C. Circuit announced and applied that canon in Michigan v. EPA⁴⁵ just a few months ago. That canon makes very good sense. We all consider the cost of our decisions in everything we do in life every day. Ignoring cost is so irrational, and so contrary to basic human nature, that courts should be extremely reluctant to conclude that Congress has prohibited an agency from considering the costs of its action.

That kind of decision would then free EPA to say what it is really doing, and to describe why it is doing what it is doing; why it has chosen this standard rather than that standard, instead of being forced to lie. Now, once EPA has the freedom to do that, then the courts can turn that freedom into an obligation through application of the arbitrary and capricious provision of the ATA. That's what I hope the Supreme [31 ELR 10134] Court is going to do for all of us some time in the next few months. Thank you.

WENDY WAGNER: Thanks so much. Professor Thomas McGarity is our last panelist. He holds the W. James Kronzer Chair in Trial and Appellate Advocacy at the University of Texas School of Law. He also has written two books and many, many dozens of articles that have made a tremendous impact on our understanding of environmental and health regulation. His path-breaking work on the causes of regulatory "ossification" and his critical analysis of regulatory fine-tuning are just two examples of the kind of work he has produced.

Professor McGarity has also served on a number of prominent national panels and task forces that were convened to better understand and identify avenues for improving upon regulatory processes, particularly in the area of environmental and workplace protection. So with that, we'll turn it over Professor McGarity.

THOMAS MCGARITY: Thank you, Wendy. She mentioned I'm the Kronzer professor at University of Texas Law School. The University of Texas Law School is fortunate now to have joined its faculty Wendy Wagner. I'm very, very pleased about that, as are all the members of the faculty, and we are looking forward to her actually winding up in Austin here pretty soon.

Most of you out there probably know my views about at least substantive judicial review of agency rulemaking involving science. I'm the advocate not of the hard look doctrine, but rather of a much more deferential standard for judicial review.

I think that substantive judicial review has played a major role in what Don Elliott has called the ossification of the rulemaking process. I give credit to Don; I give him full credit for that term. What I did was, 10 years ago, at the very same conference at which he delivered his OMB piece, accept his challenge to think and write about the ossification of the rulemaking process,⁴⁶ and one of the things that I discovered in doing so was that agencies do see the courts peering over their heads, especially the personnel rather deep in the agency, and that can have a real impact as to the obligation of coming up with long, long explanations sufficient to satisfy a reviewing court.

I want to say a few words about Don's presentation before I move on to my general remarks. First of all, I was a little surprised at his use (and Alan's, too) of the word "science" as if that were a "something." That there is the science, and then there is the policies or the politics, and the agencies are ignoring the "science" so often.

The science is just data, and interpretations of the data, are admittedly exceedingly important, especially for decisionmaking at EPA. But to say there is the science of something, as if it were the agreed-upon interpretation of the data, or that there would be a database sufficient and adequate to support a conclusion, and that anyone with scientific training who looked at that data would reach the same conclusion, is in most contexts in which it comes up—and certainly in judicial review—highly misleading. There are situations in which it is true, of course. Nobody disputes Newton's laws, and we don't see much litigation about them. Where you do see the litigation is where there are disputes (increasingly important these days) over interpretations of data.

So often where one comes out on those disputes depends on whose ox is being gored, as to whether you want a lot of data and a whole lot of analysis, or you are anxious to proceed ahead with a new technology or policy without a whole lot of data and analysis.

There are two major problems here. One is in identifying genuine scientific disputes, and isolating the ones that have been conjured up by folks. Maybe endocrine destructors is one of those. It's entirely possible that it may be a false dispute. Maybe the scientific community is really totally in agreement on that topic, and maybe it isn't. The difficult question is which ones are the real, legitimate scientific disputes and which ones aren't.

The other problem is that, in resolving science policy disputes, when we recognize that there is a legitimate dispute, we try to segregate the science from the policy. I couldn't agree more with Alan in that regard that it is desirable for agencies to be very explicit about the uncertainties they're encountering, be very explicit about the policies, the risk assessment inferences.

One final point with respect to Don before I move on is that he didn't mention the SAB. I was a little surprised by that. There are scientists in the EPA. The [ORD] hasn't in practice been the science office, but there are scientists in all the program offices, and the SAB has played, in my experience over the years, an increasingly important role as a kind of distiller and "weeder-outer," if you will, of the illegitimate disputes. It is, of course, by statute, composed of scientists from across the range of scientific viewpoint.

Now, I do agree with Alan, also, that the D.C. Circuit has been fairly aggressive in reversing EPA decisions in the past few years, and I think that's entirely inappropriate. I think that there are three real reasons why we should have very deferential judicial review of the sort that Alan doesn't like. First, respect for the court and its branches—this is nothing new, by the way. The second, which doesn't get talked about much but really should, the appropriateness of judicial policymaking in the guise of judicial review. Finally, and this does get talked about a lot, judicial competence.

With regard to the respect for the executive and legislative branches, unelected judges ought to show proper respect for the other elected branches. This is especially true, I think, when the judges are lobbying the atomic bomb of the delegation doctrine, where they can trump legislation. A court that invokes the delegation doctrine to invalidate a [31 ELR 10135] law, or even an agency's construction or interpretation of the law, is itself engaging in a discretionary exercise of institutional power. Under what has been called "conservation of discretion," there is discretion being exercised, it's just now the judges that have the discretion. That is a power that is not exclusively granted to the courts by the Constitution.

When a court invalidates a law or an interpretation on the ground that it is not supported by an intelligible principle, I think it owes an obligation to the citizens to at least be prepared to articulate an intelligible principle for determining whether the principles that the agency has applied are intelligible. I believe that the ATA opinion failed to do so.⁴⁷ Conspicuously missing from the court's application of the delegation doctrine was any legal analysis of that doctrine, or the relevant Supreme Court precedence. The dissent made note of that absence. In fact, I don't see any serious legal analysis of the language of the statute or its legislative history.

The reader of ATA comes away from that opinion with the sense that the analysis is, in essence, "I know intelligible when I see it, and this isn't it." The problem with that approach, of course, is that it doesn't give much guidance. The EPA is invited to try to come up with an approach to satisfy the majority, or to seek specific legislation from Congress. The reader doesn't get any sense of why the Agency's approach failed, and very little guidance as to what might work in the future.

Moreover, even when performing the ordinary substantive judicial review function outside the sort of atom bomb of the delegation doctrine, a single unsympathetic or confused court can bring about dramatic shifts in focus of a program, or sometimes even the complete destruction of a regulatory program.

I will take a moment to argue with Dick Pierce on whether EPA needed to engage in cost-benefit analysis in order to be intelligible. I do think that one can, admittedly being a little charitable, defend the Agency's statement about why it chose an ozone level of .08 over .07. The court said, well, there are effects all the way down conceivably to zero. That may be true, but with increasing degrees of uncertainty—and I think that's the balance that the Agency was striking, not so much against the cost of more stringent standards, but the balance of how confident it was in the conclusions that sensitive populations would, in fact, be affected.

In the ozone rulemaking EPA predicted transient and uncertain effects at .07. At .08, the effects were more likely to be serious and reversible, although there was a good deal of uncertainty about that. As you get to .09 the Agency was much more confident that there would be serious and irreversible effects. So that's a line-drawing exercise, and it's a line drawing that can appropriately be governed by a sort of balancing of your confidence level against the seriousness of the effect.

Finally, I'd like to speak to judicial competence, and this is where I join with Alan on the Daubert point. Most judges don't have the education necessary to deal with complex scientific issues, but I don't draw the line there. I don't say that's the point. Most of us don't—most litigators don't, most lawyers don't, and yet we litigate about complex scientific issues all the time.

The one thing that we do have that the judges don't is time. That is, we have the time to educate ourselves. Most of the issues, especially to the extent that the science and the policy are intertwined, as they so often are, are matters that intelligent people who work and strive hard enough can get their hands around. Now, it requires work. It requires more than sort of ivory tower stuff that we sometimes see coming out of the academic discipline; it requires reading the Federal Register documents, reading the background documents, reading the scientific studies themselves.

And that is hard, time-consuming, and the sort of thing that we really can't expect judges to do, nor should we expect even their law clerks to be doing this, either. Even well-intentioned judges who are not attempting to expand their institutional turf, and are not trying to legislate judicially their own policy preferences, are going to have trouble separating the science from the policy. I simply do not trust a federal district judge to tell me that what EPA has concluded is bad science. A beautiful example of that is the Flue-Cured Tobacco⁴⁸ case, involving EPA's extensive risk assessment of environmental tobacco smoke.

Again, it takes a lot of work. I spent two years on it, and I'm not nearly done. But we have 33 million documents from the tobacco industry that you can look at and you can see the process really work. In that case, you can watch the conscious obfuscation of science. It is explicit and very, very clear.

I'm writing about this. It's going to be a while, but I'll just give you some previews. In 1981, a professor in Japan published the first epidemiological study of Japanese wives with smoking husbands that showed, he believed, statistics that environmental tobacco smoke (ETS) caused lung cancer. Within days after it became known that the study was available, the tobacco industry had already commissioned 15 or 20 scientists to write critiques for prominent scientific publications. When one of those scientists said he thought the Japanese study was a pretty good one, the head of the tobacco industry dropped him. That's how, apparently, it works in the real world.

At great expense, the industry assembled a symposium at McGill University, loaded it up with tobacco company consultants, and then published the proceedings. Those proceedings were cited to the courts, and they're cited to the courts today. This is not to say that the scientists at the McGill conference were lying, but I would suggest that what is going on here is a conscious attempt to interpret the data in one way, and in a way that is very much driven by particular politics.

[31 ELR 10136]

Finally, days before EPA was to publish its risk assessment, a public relations firm for the tobacco industry created out of whole cloth a controversy over a study by a graduate student at Yale named Mr. Morella, who was by that time deceased. Morella's work wasn't even a dissertation; it was a master's thesis that an industry scientist found in a file. A public relations consultant for the tobacco industry pulled together reams of paper about Mr. Morella's research, sent the material to 300 reporters throughout the country, and went to extraordinary efforts to have press conferences, press releases, and so forth. It claimed that EPA was guilty of such "bad science" that it ignored the biggest epidemiological study undertaken in the United States, or had simply pushed it under the table.

It turned out that virtually all of those charges were wrong. EPA had seen the "study," had talked to the major professor at Yale who was an adviser to the graduate student, and the major professor said, "I plan to publish this data." He allowed Mr. Morella to pick through it for his master's thesis, but planned to publish the study, and ultimately did publish it. The published study basically agreed with EPA. But that study was cited in the industry's challenge before the Middle District of North Carolina, a district that was obviously chosen for the purpose of obtaining a reversal, and that court threw out EPA's risk assessment.

There were legal grounds upon which the court acted, in that the statute itself talked about a scientific advisory entity, and EPA relied upon its own SAB. Interestingly, the tobacco industry lawyers, back when EPA was preparing the risk assessment, leaned on EPA very heavily to do it through the SAB. When the SAB found the risk assessment to be supported by the data, the industry argued that the statute required a differently composed board. I suppose this argument might have provided a legitimate reason for reversing EPA, but the court didn't stop there. Instead, it wrote a 40- or 50-page point-by-point scientific critique of EPA's risk assessment. That went way beyond the pale. Maybe this is as Flue-Cured Tobacco is an outlier, but the point here is that the judge really wasn't competent to be critiquing EPA's science. In fact, it appears that the judge was attempting to destroy this report so that it wouldn't be used in litigation elsewhere, as for example, private litigation, and that sort of thing.

My conclusion, or to sort of sum it all up, is that federal judges should, to the extent possible, be neutral arbiters of particular disputes, and should carefully avoid the public perception that they're acting as part of the political process. If they don't, I think the public is not going to have much trust for that institution. There's sufficiently little trust for governmental institutions these days, as it is. The judiciary is the repository of a great deal of that remaining trust, but as it becomes more and more apparent that the judges are acting as politicians, the public will show less respect, and unpopular judicial opinions remain unenforced and generally disregarded. Thank you.

WENDY WAGNER: Thank you. You were an absolutely terrific panel. Perhaps we should take a few minutes for the panelists to respond before we take questions from the audience.

ALAN RAUL: I would like to respond to a couple of points.

While it's true that Lead Industries read consideration of costs out of CAA § 109, the fact of the matter is that Congress has passed numerous statutes, some of which are part of the Contract With America, and some of which were not, that specifically embrace consideration of costs and risk assessment, and cost-benefit balancing.

The Unfunded Mandates Reform Act (UMRA) of 1995⁴⁹ required the EPA to engage in a cost-benefit analysis, and to choose the most cost-effective, least burdensome regulatory alternative consistent with law. And the SDWA is considered a model for new and more enlightened statutes. As Professor Pierce indicated, the reality is that life compels us all to consider costs and balance costs and benefits, and to consider risk assessment, and risk balancing.

So we've got the UMRA, which is an overriding statute requiring agencies to consider and act on cost-effectiveness and efficiency grounds; the Toxic Substances Control Act⁵⁰ and the Federal Insecticide, Fungicide, and Rodenticide Act,⁵¹ both of which involve cost-benefit analysis; the SDWA, which imports risk assessment and cost balancing, and, perhaps most significantly in the ATA context, the 1990 Amendments to the CAA, which brought many cost considerations into the Act. Those amendments require the Agency to publish an analysis of the cost-benefit implications of national ambient air quality standards. There are numerous other provisions that clearly signal congressional adoption of cost-benefit balancing and cost-effectiveness as a necessary principle in environmental regulatory decisionmaking.

I believe the Supreme Court will and should take all these factors into account in deciding whether Lead Industries is correct, whether it was correct when decided in 1980, or whether it remains correct in light of the substantive congressional enactments that should be read in pari materia with § 109 of the CAA, as previously interpreted by the D.C. Circuit.

Professor McGarity made good and effective points with regard to the ozone rule that EPA issued, and the applicable uncertainties and lack of confidence in various outcomes. What is important to remember there is that the [CASAC] advised EPA that there is no bright scientific line that distinguishes among any of the alternatives—the status quo, the slightly more stringent standard of .07, the slightly less stringent standard of .09—there is basically not a scientific distinction that can help you decide among these alternatives. So as Professor Pierce said, it's got to be something else.

On Flue-Cured Tobacco, it is important to know that the deciding judge was the same one who ruled that the [FDA] had authority to regulate tobacco, a decision that was [31 ELR 10137] ultimately reversed by the Supreme Court in Food & Drug Administration v. Brown & Williamson Tobacco Corp.⁵² Obviously, the judge was more than willing to decide against the interests of the tobacco industry. But what the judge found in Flue-Cured Tobacco was that EPA had actually manipulated the science in numerous egregious ways. Indeed, he was not as scathing in his criticism of EPA as the Congressional Research Service (CRS) was in testimony it delivered before Congress. The CRS used terms to chastise and criticize EPA that one doesn't say in polite company, even in congressional testimony, because EPA had changed the so-called confidence level for statistical analysis from the traditional 95% confidence interval to a 90% confidence interval, thereby artificially boosting the apparent association between cancer and secondhand smoke. EPA changed it not only from what is traditional in this type of analysis, but in fact, EPA relaxed the standard from what was used in the Agency's own draft study. The CRS, and the court, found a problem with that.

EPA also excluded some studies. Professor McGarity talked about the possibility of industry influencing the studies, and referenced tobacco industry documents. But it's also the case that the Agency dropped studies that it didn't want to look at, and lowered the traditional analytic standards that it typically applies and other scientists apply to judge the strength of correlations and statistical association.

RICHARD PIERCE: I wanted to respond to one of Alan's points. I agree with a lot of Alan's points, but I wanted to urge caution about going very far with the regulatory Daubert idea. Initially, I think it's important to note the very different institutional context that we're talking about here.

Daubert arose in the context of whether a federal judge should act as a filter as to what kind of evidence lay jurors can consider. I think Daubert makes a lot of sense in that context. Federal judges don't know that much about science, but they know a lot more than do lay jurors, and so it makes sense to assign them that task. Transposing that into the regulatory context, however, is quite doubtful. Federal judges don't know much about science. They know a lot less about science than do agencies. My favorite illustration concerns a passage in a Supreme Court plurality opinion, a wonderful passage—Tom knows it well—in which the Court, in an attempt to be helpful after holding that the [Occupational Safety and Health Administration (OSHA)] must find that a substance poses a significant risk before it gets regulated, gives an illustration of a risk it considers real bad, and a risk it considers trivial.⁵³ Anyone who has had Toxicology 101, even if they got a D in it, can see that the risk that the court calls trivial is much larger than the risk the court calls plainly unacceptable. I don't want fools like that messing around with science, and that's the best of our judiciary.

Another reason for skepticism is that most agencies are already applying Daubert. Daubert arose in the context of a bendectine case. [The] FDA considered the evidence about bendectine. In fact, considered exactly the same evidence that was at issue in Daubert on two different occasions—there were elaborate studies—and it said what the Supreme Court said. The Agency never considered the kind of really "junk" science that is routinely excluded throughout the Daubert line of cases.

One final point. At one point both Alan and Don made reference to the D.C. Circuit's high reversal rate of EPA to prove that EPA is doing a lot of bad things. Well, I'm not a big fan of EPA. I have no doubt that EPA does a lot of bad stuff, but I urge caution in terms of using the D.C. Circuit reversal rate to prove that an agency is doing a bad job. I would urge anybody who hasn't yet done so to read Ricky Revesz's study⁵⁴ in which he goes through the political statistics, and shows that on the D.C. Circuit in particular, Republican appointees almost invariably find flaws with Agency decisionmaking, while Democratic appointees hardly ever do.

This is just politics that has gone from the Agency level to the judicial level. That's all that is. And you can't draw an inference from that as to anything except that Republicans continue to maintain a majority of the members of the D.C. Circuit.

RANDY HILL: I'm Randy Hill, and I'm sort of a spy here. I'm actually from EPA. Let me say that right off.

My question is primarily for Mr. Raul, and I would really love to engage you on Chlorine Chemistry Council, but having worked on the case I may drift into making privileged statements, so instead, what I want to ask you a two-part question about your thesis about Daubert. The first part is, do you think it's actually necessary? I've been sort of working myself on a hypothesis, and I think Professor McGarity in some ways endorsed it, that may be the standard of review has already changed.

I think if you look at Chemical Manufacturers Ass'n, at Flue-Cured Tobacco case, and a 1994 case from the the D.C. Circuit, Leather Industries,⁵⁵ the courts were, in fact, taking a harder look at Agency science, and basically giving the Agency a lot less deference than they used to get. So I'm wondering whether, in fact, even if there's a problem, is there a necessary cure, or have the courts already sort of taken it on themselves?

The second part of the question is, assuming that we do need a cure, and this maybe follows up on Professor Pierce's points, how wouldyou, in fact, carry it out; would it be simply a higher standard of review, or would you expect the courts to engage in some sort of evidentiary fact-finding in order to decide which of the studies to take?

[31 ELR 10138]

My concept of judicial review is that if the Agency has seven studies, and they're sort of equally balanced, and the Agency says, "well, there are reasons to think that these four studies are better than those three," the courts ought to get out of the way, yet they really haven't been doing that. So how would a Daubert principle change that kind of review?

ALAN RAUL: I think you make a good point that the standard, to some extent, may have changed. The D.C. Circuit has not been, in my view, particularly hospitable to EPA, perhaps for the reasons that Professor Pierce has indicated. So I think in part the standard has changed, at the D.C. Circuit in particular. Other courts have also been willing to take a hard look, but it's not uniform. One of the principle objectives of my regulatory Daubert proposal is to attempt to achieve a more uniform level of judicial review of science, with the interest of enhancing the predictability of review itself, as well as to send a signal to the Agency that it needs to provide better and more honest scientific substantiation and documentation.

But I would note that there are a couple of court decisions in which the notion of extreme deference continues to hold sway. In a 1992 decision, which you might say was long enough ago that it is before the de facto standard of review changed, International Fabricare Institute v. EPA,⁵⁶ the D.C. Circuit was very deferential to agency decisionmaking. More recently, in the May 2000 decision in Environmental Defense Fund v. EPA,⁵⁷ the D.C. Circuit said that EPA's reasons and policy choices are subject only to minimal standards of rationality, and that courts must show considerable deference to an agency.

Again, these are not terribly controversial propositions, but they reflect a tension in the standard of scientific review that the D.C. Circuit, and other courts, are trying to apply to EPA. Is the standard "extreme" deference, is it merely "some" degree of deference? I would suggest that by bringing analogous Daubert-type principles into administrative law and judicial review, you would get a more uniform, reliable level of judicial review. So as to whether the cure is "necessary" or not, I would suggest that if the objective is to achieve more predictability and reliability, yes, it is necessary.

One last point on whether the standard has changed. Last term's decision in Christensen v. Harris County⁵⁸ has been cited by many courts as evidence for the continued vigor of Chevron in applying deference. In fact, Justice Thomas' decision really scales back the degree of deference that is accorded to agency actions that are not issued pursuant to notice-and-comment rulemaking. Justice Scalia took great issue with Justice Thomas' opinion in that case. I think the case, properly understood, reflects a scaling back of the extent of Chevron deference under certain circumstances.

I would suggest Daubert-type principles ought to be applied in administrative law to empower and encourage reviewing judges to remove the barrier of extreme deference standing between them and a review of the methodologies and principles that agencies rely on. Courts would not substitute their own political or policy preferences for those of the Agency, but would make the Agency come clean on what the key scientific factors are, what the key uncertainties and assumptions are. I think that can be done without substituting judicial policies for administrative policies, which would be an unfortunate result.

THOMAS MCGARITY: I think sometimes what you see is extreme deference when the petitioner is [the EDF], and not so much deference when it's American Trucking Associations, so just pulling verbiage out of an opinion may depend again on whose ox is being gored. Also, I would just suggest to you that, in the area of genetically modified foods, when people talk about the FDA, that's a very controversial business these days. The fact of the matter is there is virtually no science to support the safety of genetically modified food, but under the reasonable certainty of no harm test that the FDA applies it basically allowed it all to go through as generally recognized as safe. There's no science to base that on. But we don't hear a lot of fighting about that. Now, we may, as soon as [the] FDA is sued, see how deferential they are to that.

ALAN RAUL: The District Court in D.C. actually affirmed the FDA biotech policy, just a week or so ago.

PETER STRAUSS: There was an awful lot in the panel's wonderful presentation that struck me as being quite familiar in a really long term sense. I can remember an opinion writer for the old Civil Aeronautics Board (CAB), back in the days when there was a CAB, talking about how he wrote opinions. "Well, they tell me Delta gets the route from Atlanta to Chicago. Now you go write the opinion." This is not a new kind of problem. What you were arguing for, Alan, sounds to be very much like what the Supreme Court at least said it thought it had accomplished in Baltimore Gas, that because the agency was open about its uncertainties, deference is owing to them.

And one can also remember Bill Pederson's remarks about the utility of giving those within the EPA who care about reasonable decisionmaking process tools with which to work against those within the Agency who do not. That's from 1977, as I recall, and seems to be very much in the way of the dispute that we're talking about today.

I have two general propositions on which I'd like any of you to respond. For me, Justice Stevens' greatest error in Industrial Union (Benzene), and for that matter, Judge William's greatest error in ATA, was to fail to credit a device that Congress had provided for bringing science to bear on regulatory decisions. In Benzene it was the National Institute of Occupational Safety and Health [(NIOSH)] which had advised, as it was statutorily directed to do, OSHA about what [31 ELR 10139] its priorities ought to be. Stevens writes his opinion as if that advice wasn't there, as if OSHA didn't have a reason for going after Benzene regulation because NIOSH, this scientific panel, had told them Benzene ought to be a priority. His opinion paid no attention to this congressionally mandated device for setting priorities.

Similarly, in ATA, the CASAC was involved, and while it's certainly true, as Alan remarked a few moments ago, that it didn't resolve the science issue, it bracketed it, and its doing so makes wholly illegitimate Judge Williams' remark that about EPA being "free to pick any point between zero and a hair below the concentrations yielding London's Killer Fog."⁵⁹ He pays no attention at all to this useful bureaucratic, structural device; so that's question one this panel. Does the panel think that these are the kinds of devices that ought to get more judicial attention as an appropriate means for bringing science to bear on regulatory processes?

And the second is a question about ATA. If I take the word "delegation" out of ATA, which I will admit is hard to do, what I read is a judicial insistence that the explanation EPA writes has to have one important quality to it; it has to be sufficient to tell the court what the Agency's reasoning process will be the next time this kind of issue arises, so as to permit the court to assess whether the Agency would used that process consistently, or explain there was a departure from it. Put that way, the opinion seems to express a very standard and, I would suppose, desirable principle of administrative law.

RICHARD PIERCE: I'll take a stab at that; my answers are yes and yes. I agree completely with your first point. Those do seem to be extremely useful devices, and I think the courts should acknowledge them, credit them, use them. On your second point, I would agree with that, too. If the D.C. Circuit had written ATA as a standard State Farm arbitrary and capricious reversal, well, of course, it never would get to the Supreme Court. The Court might take one of those kinds of cases every 10 years, and the decision wouldn't be getting this kind of attention from us, and might or might not have been right.

There is, however, another point that logically follows from that. If the D.C. Circuit had taken that approach, then I think it would have been obliged to treat these not as one rulemaking, but as two, as they were, of course. As has already been illustrated, I think these really were quite different rulemakings. I've talked to members of the advisory committees on both rulemakings; the two rulemakings were worlds apart. And so the D.C. Circuit, having taken that approach, would have been obligated then to say that one was fine and the other was not; it might have said a whole lot of things, but we would have learned a lot more about its reaction to the quality of the Agency's reasoning process.

THOMAS MCGARITY: I agree with Peter on both points.

ALAN RAUL: Well, I think we are in unanimous agreement, because my answers would be yes and yes, too. I would offer just a couple of observations. I think that in ATA the court was so deferential to the Agency's science that it accepted it without any real question or analysis. The ozone and particulate matter rules were indeed very different rules. There were scientific issues and questions about both of them, and the D.C. Circuit certainly had an opportunity to get into the scientific issues but decided not to, accepting the Agency's scientific conclusions and judgments through complete deference.

The point that Professor Strauss makes—that if you take nondelegation out of ATA, and express the requirement as to whether the Agency's reasoning process has been consistently applied—I think that's exactly right, and would certainly be one of the goals that I would propose for the regulatory Daubert approach. That's exactly what is intended to be accomplished. That is to say, smoking out what the Agency is really basing its decisions on, the basis of its reasoning process, and determining whether the Agency is applying that process consistently.

With regard to the SAB and the CASAC in the ozone rulemaking, they certainly did bracket what the scientific range would be, and they indicated that there was no bright scientific line, thereby making clear that the ultimate decision was a policy judgment, as opposed to a scientific one. One caution I would note on reliance on SAB-type reports regards how those reports end up being drafted. I think it is possible, and I have seen instances in my review of Agency activity with regard to these reports, that SAB members express comments, and an EPA staff writer writes up the comments in a draft. It then goes back out and is circulated to the SAB. The SAB members say "no, that's not right, I didn't say that." Comments go back the staff writer, the staff writer puts out another draft, the SAB again says "no, that's not what I said, that's not right." Ultimately, in the drafting of the report an Agency official is in control of the final product. Sometimes it's important to verify that the report actually correctly reflects the deliberations of the SAB members themselves.

PETER STRAUSS: I should confess that in my earlier guise as general counsel of the [NRC], I had a lot to do with a similar type of advisory board that works there, and worked, I thought at the time, tremendously well in part because you could bring in professors in the relevant subjects from MIT, from Cal Tech; from wherever in the country you could get people who were willing to do a bit of service. Now, it follows from that those professors will not write their reports. And so it does come down to an integrity of process issue, but they're getting in early, and they're having an opportunity to give candid advice. It was so for the NRC, as I'm confident that in the CASAC context the Commission is a really good outrigger for what can otherwise be a politics-driven process.

[31 ELR 10140]

THOMAS MCGARITY: On Peter's first point, one difference would be had the court simply treated in ATA the matter as a standard substantive judicial review, if the court felt the Agency's actions were arbitrary and capricious, all that would have happened would have been a remand to the the Agency, not a reversal and a throwing out of the standard. The throwing out of the standard, in fact, threw the entire regulatory program totally out of kilter. It's still not back together again, and may never be.

WENDY PACHTER: I'm both a scientist and a lawyer, and from a legal point of view, I found this fascinating and wonderful.

From the scientific point of view, what I do is interpreting science for policymakers, and sometimes for lawyers. What I found a little troubling was the discussion of do jurors understand science, no; judges understand science better than jurors, but lawyers have more time to do it than even judges, and who should be doing this.

I think the idea of bracketing the science is one that I really like. What youdo with the process once you bracket the science is an important question, but once you bracket the science I think the scientists are in the best position to determine what is the most credible science.

I don't think lawyers and judges should be doing that, except in consultation, and the American Association for the Advancement of Science in the Federal Judicial Center is currently—I don't know a lot about this project, but they're trying to implement some procedures for Daubert litigation, such as having scientific masters, impartial experts, who would advise the court, rather than partisan experts. I know that in some state law cases, also, the American Psychological Association has made the same kind of recommendation, namely that there be science experts to the court rather than partisan experts. Likewise, the National Research Council is doing some reports specifically for agencies, so that questions can be sent to the National Research Council, which is seen as somewhat more impartial.

WENDY WAGNER: Thanks to a marvelous panel.

1. E. Donald Elliott is a partner in the Washington, D.C., office of Paul, Hastings, Janofsky & Walker LLP and is an adjunct professor at Yale Law School. Alan Charles Raul is a partner in the Washington, D.C., office of Sidley & Austin. Richard J. Pierce Jr. is the Lyle T. Alverson Professor of Law at George Washington University. 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 at the University of Texas School of Law. This is an edited transcript of a program held at the American Bar Association (ABA) Section of Administrative Law and Regulatory Practice 2000 Administrative Law Conference, held in Washington, D.C., Oct. 12-14, 2000. The panel was co-sponsored by the Environmental Natural Resources Regulation Committee of the Administrative Law and Regulatory Section of the ABA and by the Standing Committee on the Environment of the ABA.

Every October, the Administrative Law Section holds a three-day conference in Washington, D.C., with more than a dozen panels, workshops, and other events that focus on issues arising in administrative and regulatory law. To learn more about the section's activities and publications (including its "Annual Developments in Administrative and Regulatory Practice" series), contact the Administrative Law Section's office at (202) 662-1528 or visit the section's website at http://www.abanet.org/adminlaw.

This transcript is published with the permission of the ABA; the views expressed have not been approved by the ABA House of Delegates and do not constitute the position of the ABA.

2. See, e.g., David L. Bazelon, Coping With Technology Through the Legal Process, 62 CORNELL L. REV. 817 (1977).

3. Stephen Goldberg, The Reluctant Embrace: Law and Science in America, 75 GEO. L.J. 1341, 1365 (1987).

4. See, e.g., J. Ashby et al., Lack of Effects for Low Dose Levels of Bisphenol A and Diethylstilbestrol on the Prostate Gland of CFI Mice Exposed in Utero, 30 REG. TOXICOLOGY & PHARMACOLOGY 156 (1999).

5. STEPHEN G. BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION (1993).

6. Natural Res. Def. Council v. NRC, 547 F.2d 633, 6 ELR 20615 (D.C. Cir. 1976), rev'd sub nom. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 8 ELR 20288 (1978).

7. Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J 984.

8. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 13 ELR 20544 (1983).

9. Natural Res. Def. Council v. NRC, 685 F.2d 459, 12 ELR 20465 (D.C. Cir. 1982), rev'd sub nom. Baltimore Gas, 462 U.S. at 87, 13 ELR at 20544.

10. Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613 (1995).

11. See, e.g., Citizens to Preserve Overton Park v. Volpe, 332 U.S. 402, 1 ELR 20110 (1971).

12. United States v. Morgan (Morgan IV), 313 U.S. 409 (1941). See also Daniel J. Gifford, The Morgan Cases: A Retrospective View, 30 ADMIN. L. REV. 237 (1978).

13. For a parallel argument that legal fictions in toxic tort cases are distorting public perceptions of risk, see E. Donald Elliott, The Future of Toxic Torts: Of Chemophobia, Risk as Compensable Injury and Hybrid Compensation Systems, 25 HOUS. L. REV. 781 (1988).

14. Chlorine Chemistry Council v. EPA, 206 F.3d 1286, 30 ELR 20473 (D.C. Cir. 2000).

15. The National Academy of Sciences has recently made a similar proposal for a new EPA Deputy Administrator for Science and Technology: "Just as the advice of the agency's legal counsel is relied upon by the Administrator to determine whether a proposal is 'legal,' an appropriately qualified and adequately empowered science official is needed to attest to the Administrator and the nation that the proposed action is 'scientific'—that it is consistent, or at least not inconsistent, with available scientific knowledge …." NATIONAL RESEARCH COUNCIL, STRENGTHENING SCIENCE AT THE U.S. ENVIRONMENTAL PROTECTION AGENCY (2000).

16. Exec. Order No. 12866, Regulatory Planning and Review, 58 Fed. Reg. 51735 (Sept. 30, 1993), ADMIN. MAT. 45070. See also PRESIDENTIAL/CONGRESSIONAL COMM'N ON RISK ASSESSMENT AND RISK MANAGEMENT, RISK ASSESSMENT AND RISK MANAGEMENT IN REGULATORY DECISIONMAKING 103 (1997).

17. E. Donald Elliott, TQM-ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It, 57 LAW & CONTEMP. PROBS. 167 (1994).

18. See William D. Ruckelshaus, Stopping the Pendulum, ENVTL. F., Nov./Dec. 1995, at 26.

19. See remarks of Alan Raul, hereinbelow.

20. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993).

21. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 14 ELR 20507 (1984).

22. Congressional Review of Agency Rulemaking Act, 5 U.S.C. § 801(a)(1)(B).

23. Jonathan Adler, Environmental Performance at the Bench: The EPA's Record in Federal Court, Reason Pub. Pol'y Inst. (2000), available at http://www.rppi.org.

24. See 5 U.S.C. § 706, available in ELR STAT. ADMIN. PROC.

25. General Elec. Co. v. Joiner, 522 U.S. 579, 28 ELR 20227 (1997).

26. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 29 ELR 20638 (1999).

27. 120 S. Ct. 1011 (2000).

28. Chlorine Chemistry Council v. EPA, 206 F.3d 1286, 30 ELR 20473 (D.C. Cir. 2000).

29. Motor Vehicle Mfrs. Ass'n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 13 ELR 20672 (1983).

30. U.S. EPA, SAFEGUARDING THE FUTURE: CREDIBLE SCIENCE, CREDIBLE DECISIONS (1992).

31. Id. at 36.

32. Id. at 37.

33. 28 F.3d 1259, 24 ELR 21210 (D.C. Cir. 1994).

34. Sierra Club v. Marita, 46 F.3d 606, 25 ELR 20514 (7th Cir. 1995).

35. Stewart v. Potts, 983 F. Supp. 678, 28 ELR 20574 (S.D. Tex. 1997).

36. American Trucking Ass'n v. EPA, 175 F.3d 1027, 29 ELR 21071 (D.C.Cir. 1999), panel opinion modified & reh'g en banc denied, 195 F.3d 4, 30 ELR 20119 (D.C. Cir. 1999).

37. SHELIA JASANOFF, THE FIFTH BRANCH: SCIENCE ADVISORS AS POLICYMAKERS 61-76 (1990).

38. See Richard J. Pierce Jr., The Inherent Limits on Judicial Control of Agency Discretion: The D.C. Circuit and the Nondelegation Doctrine, 52 ADMIN. L. REV. 63 (2000).

39. 42 U.S.C. § 7409, ELR STAT. CAA § 109.

40. 647 F.2d 1130, 10 ELR 20643 (D.C. Cir.), cert. denied, 449 U.S. 1042 (1980).

41. National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 38856 (July 18, 1997).

42. National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38652 (July 18, 1997).

43. U.S. EPA, EPA REGULATORY IMPACT ANALYSES FOR THE PARTICULATE MATTER AND OZONE NATIONAL AMBIENT AIR QUALITY STANDARDS AND PROPOSED REGIONAL HAZE RULE (1997).

44. Natural Res. Def. Council v. EPA, 824 F.2d 1146, 1163, 17 ELR 21032, 21038 (D.C. Cir. 1987) (en banc).

45. 213 F.3d 663, 30 ELR 20407 (D.C. Cir. 2000).

46. See Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385 (1992).

47. See Thomas O. McGarity, The Clean Air Act at a Crossroads: Statutory Interpretation and Long-Standing Administrative Practice in the Shadow of the Delegation Doctrine, 8 N.Y.U. ENVTL. L.J. (forthcoming 2000).

48. Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA, 857 F. Supp. 1137, 25 ELR 20089 (M.D.N.C. 1994).

49. Pub. L. No. 104-4, 109 Stat. 48 (codified at 2 U.S.C. § 1501).

50. 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-412.

51. 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA §§ 2-34.

52. 120 S. Ct. 1291 (2000).

53. Pierce, supra note 31, at 72 (discussing Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 10 ELR 20489 (1980) (Benzene)).

54. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717 (1997).

55. Leather Indus. of Am., Inc. v. EPA, 40 F.3d 392, 25 ELR 20158 (D.C. Cir. 1994).

56. 972 F.2d 384, 22 ELR 21385 (D.C. Cir. 1992).

57. 210 F.3d 396, 30 ELR 20550 (D.C. Cir. 2000).

58. 120 S. Ct. 1655 (2000).

59. American Trucking, 175 F.3d at 1037, 29 ELR at 21073.

31 ELR 10125 | Environmental Law Reporter | copyright © 2001 | All rights reserved