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DevinMcDougallFirstPaper 7 - 28 Feb 2010 - Main.DevinMcDougall
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Climate Change, Lawyers and the Creed of Expertise | | | MA v. EPA originated as a rulemaking petition in 1999, which requested that the EPA regulate greenhouse gas emissions under the Clean Air Act. The Bush administration denied the petition in 2003, and environmental groups sued under Section 307 of the Clean Air Act, which authorizes the D.C. Circuit to overturn agency decisions which are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This provision enables the punishment of agency decisions which a court finds stray from expertise into caprice or politicization. The D.C. Circuit ruled in favor of EPA, but on appeal, the Supreme Court found the EPA’s decision to be “arbitrary and capricious,” and ordered EPA to conduct a formal endangerment finding to determine whether greenhouse gases constitute a threat to human health and welfare, and issue the regulation if they find they do. | |
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< | Under the standard established by Chevron v. NRDC, courts are instructed to review agency decisions deferentially, in recognition of agency expertise. However, in MA v. EPA, the court nonetheless found that EPA, in denying to take any steps to investigate the risks of greenhouse gas emissions, had fallen outside the area of expertise and into politicization. Jody Freeman and Adrian Vermeheule characterize the MA v. EPA decision as representing an attempt by the Supreme Court at “expertise forcing,” and write: “Whereas the Chevron worldview sees democratic politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which politics and expertise are fundamentally antagonistic.” | >
> | Under the standard established by Chevron v. NRDC, courts are instructed to review agency decisions deferentially, in recognition of agency expertise. However, in MA v. EPA, the court nonetheless found that EPA, in denying to take any steps to investigate the risks of greenhouse gas emissions, had fallen outside the area of expertise and into politicization. Jody Freeman and Adrian Vermeule characterize the MA v. EPA decision as representing an attempt by the Supreme Court at “expertise forcing,” and write: “Whereas the Chevron worldview sees democratic politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which politics and expertise are fundamentally antagonistic.” | | | As Arnold might observe, a sign of the vitality and flexibility of the creed of expertise is that its invocation can serve both as a rationale for deference to agency decisions, as in Chevron, or as a rationale for judicial intervention to police politicization of agency work, as in MA v. EPA. |
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