Judicial Review of Risk Assessment: Substance or Procedure? J. S. Applegate, Indiana University School of Law
In reviewing the decisions of administrative agencies, courts draw a sharp distinction between substantive and procedural questions. Agencies are given great deference on substantive questions, that is, those involving the legal rules that actually govern conduct. On procedural questions, that is, the administrative process leading up to the substantive decision, courts are much freer to reject an agency’s actions. The conventional reasons for this difference include the relatively greater agency expertise on substantive questions, especially if they involve scientific or technical judgment, and the fact that Congress has delegated such decisions to the agency, not the courts. For procedure, courts can be considered experts in their own right on such questions. Judicial review of agency risk assessment challenges this dichotomy. On the one hand, risk analysis implicates the agency’s expertise to an unusually great extent. Not only is it science (or a mix of sciences), but it requires the exercise of judgment often "at the frontiers of science." On the other hand, there has existed at least since the Red Book’s appearance in 1983 a more or less established procedure for performing risk assessments. While the procedures have changed over time and require judgment in fitting the procedure to the situation, the process is reasonably well defined. At least two federal courts have focused on alleged procedural deficiencies in an agency’s risk assessment to justify rejection the substantive action based on them. As Congress continues to mandate risk assessment procedures in some detail, as it did in the Safe Drinking Water Act, it will become increasingly important to understand the standards that should apply to judicial review of agencies risk analyses.
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