What Risk Analysts Should Know
About Judicial Review

A RiskWorld news article by associate editor Amy Charlene Reed, e-mail reed@tec-com.com.

December 30, 1996 -- One of the highlights of a session on risk and law at the 1996 Society for Risk Analysis Annual Meeting this month was a primer on judicial review for risk analysts. The issue of judicial review of risk assessments came under the national spotlight recently as Congress considered legislation that would have affected the court’s oversight of government agency regulations based on risk assessments.

Kathleen Kunzer, an assistant general counsel of the Chemical Manufacturers Association specializing in risk issues and a member of the interim Executive Committee of SRA’s Risk Science and Law Specialty Group, presented the brief synopsis. "I can only hit the highlights," she noted. "Condensing an entire law course into a 15-minute session doesn’t leave much time for details."

The Foundation for Judicial Review

Under current laws, judicial scrutiny of a government agency’s risk assessment usually occurs when a court is reviewing an agency regulation for which the risk assessment was done.

"The Administrative Procedure Act is what determines how the court is to review agency actions," she said. The 1947 act allows the court to set aside an agency’s action if one of six conditions is present. Of these, the two most likely to be cited regarding agency regulations based on risk assessments are (1) when the court finds the action to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" and (2) when the court determines that the agency undertook the action "without observance of procedure required by law."

In addition, the Administrative Procedure Act and the courts themselves impose several other limitations on judicial review of agency regulations:

Courts’ Reviews of Risk Assessments

Kunzer noted that the review of risk assessments raises difficulties for the courts. One such difficulty is the court’s relative lack of expertise in regard to risk analysis, along with the law’s lack of specific criteria for the courts to use in evaluating risk assessments. This causes the courts to defer to the agency’s expertise in most cases.

"Anyone challenging an EPA decision based on a risk assessment is likely to lose because the courts are generally very deferential to the agency," she said.

While the instances when the courts have invalidated risk assessments are few and far between, they have occurred. Kunzer noted the 1994 case of the Chemical Manufacturers Association v. U.S. Environmental Protection Agency. "This particular case was an example of the agency using standard guidelines rigidly without thinking through variations in the substances," she said. "EPA had based its emission standard for a hazardous air pollutant on a model that had no rational relationship to the real-life characteristics of the pollutant. The substance was a solid at the most relevant temperatures, but the model assumed it was a gas."

Another difficulty that the courts encounter is the "blur between science and policy in risk assessments," she said. "Sometimes a policy decision is imbedded into the risk assessment, which is supposedly the science. A conscientious court tries to separate the science from the policy decision, but other courts may defer completely to the agency."

In closing, Kunzer noted that legislation that Congress has considered during the past two years would have overcome some of these difficulties. "Risk legislation could make the court’s job easier by setting criteria for the court to use, by forcing the agency to separate science from policy, and by requiring peer review," she said.

Related Links

Risk Science Law Group of the Society of Risk Analysis

Interface Between Risk and Law Is Focus of New Group

Chemical Manufacturers Association

Biography of Kathleen Kunzer

Story posted December 30, 1996.

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