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EPA On Appeal ‒ ELR® Publishes First Comprehensive Review of Case Outcomes

March 2001

In a feature article of the Environmental Law Institute’s April 2001 issue of the Environmental Law Reporter News and Analysis, law professors Christopher H. Schroeder (Duke University) and Robert L. Glicksman (University of Kansas) refute claims that EPA has fared worse than other federal agencies in the judicial review process and that the Agency has persistently failed to justify its rulemaking choices in a manner that withstands scrutiny in court.

Their conclusions are based on a systematic analysis of all U.S. courts of appeals decisions from the 1990’s in which the U.S. EPA or its administrator was a named party. Their data base of over 300 cases provides the first comprehensive look at federal judicial review of EPA’s use of science in its rulemaking proceedings and its statutory interpretations.

Professors Schroeder and Glicksman conclude that the courts are reluctant to overrule Agency decisions when doing so requires disagreeing with the Agency on questions of degree or involves tradeoffs among different policy considerations. In the scientific area, the courts have declined to second-guess Agency decisions which hinge upon the adequacy of data relied upon by EPA versus data proposed by petitioners. The EPA also typically prevailed on questions that turned upon its weighing appropriately the scientific evidence and whether models used by EPA were inferior to alternative models.

On the other hand, the authors note that EPA was vulnerable on review when its scientific decisionmaking could be characterized as pointing to a conclusion without any demonstrated factual support, to a technical model unsuited to the issue, to a link in its reasoning process left completely unexplained, to internally inconsistent reasoning, or to a relevant factor left unanalyzed.

The study also provides a fully comprehensive picture of the types of challenges brought under the reasoned decisionmaking doctrine and the types of statutory interpretation issues that led to judicial reversals. The authors provide evidence that EPA overall has been much more successful in its statutory interpretations than prior, more limited analyses have suggested. The difference in results may, in part, be attributable to selection bias in these other studies. Finally, the study finds that the “Chevron effect” of deference to agency interpretation, has persisted into the 1990s, at least with regard to EPA.

Copies of the article are available to the media by contacting pressrequest@eli.org. Otherwise, “Chevron, State Farm, and EPA in Courts of Appeals During the 1990s”, 31 Envtl. L. Rep. (Envtl. L. Inst.) 10371 (Apr. 2001), is available by calling 1-800-433-5120.