"Risk Analysis in the Courts: A Roadmap for Risk Analysts"
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Poster 15
JUDICIAL REVIEW OF REGULATORY ACTION
Deference to Agency Judgment
In addition to the legal standards that govern judicial review of agency action, courts bring to the task a general approach (or, as Justice Felix Frankfurter once put it, a "mood") that is either more or less critical of the agency's reasoning. To some extent this is determined by the applicable legal standards (SEE POSTER NO. 13), but the legal standards are sufficiently general that they permit considerable discretion in applying them -- and that is where the court's and individual judge's approach comes into play.
SPECTRUM OF JUDICIAL DEFERENCE
Professors Abraham and Merrill identified three judicial approaches toward agency decisions based on uncertain science: confrontation, avoidance, and deference.
We use the term confrontation nonpejoratively to refer to situations in which the courts . . . face scientific questions directly and purport to resolve them on their merits... Avoidance is usually assumed either by reformulating a dispute so that a scientifically uncertain question is no longer posed or by resolving the dispute on some other ground. The third stance is deference to another authoritative decision‑maker, such as a regulatory agency.
Kenneth S. Abraham & Richard A. Merrill, Scientific Uncertainty and the Courts, Issues in Sci. & Tech.
93, 94 (Winter 1986)
Confrontation -- Avoidance -- Deference
Confrontation
Gulf South Insulation v. U.S. Consumer Product Safety Comm'n, 701 F.2d 1137 (5th Cir. 1983).
Gulf South involved CPSC’s attempt to regulate urea formaldehyde foam insulation (UFFI). Given the uncertainty of the epidemiological evidence, the court was extremely critical of the agency's reliance on a risk assessment based on a single study. The court concluded: The Federal Panel's findings that the Chemical Institute study was valid and that formaldehyde should be presumed to pose a cancer risk to man do not authenticate the use of the study's results, and only those results, to predict exactly the cancer risk UFFI poses to man. As Dr. Higginson aptly stated, it is not good science to rely on a single experiment, particularly one involving only 240 subjects, to make precise estimates of cancer risk. . . . To make precise estimates, precise data are required. . . . The result is that the Commission's finding that UFFI poses an unreasonable risk of cancer is not supported by substantial evidence on the record as a whole." The court's declaration of what is and is not "good science" is viewed by many as the high water mark of judicial willingness to reexamine agency judgments.
Avoidance
Industrial Union Dep't, AFL‑CIO v. American Petroleum Inst., 448 U.S. 607 (1980) (The Benzene case).
Remarkably, this case, decided by a plurality rather than a majority opinion, remains the Supreme Court's most thorough discussion of the problem of regulating toxic substances. A majority of the Court was clearly convinced that OSHA's benzene regulations represented a very expensive way to achieve modest risk reductions. Rather than challenge the wisdom of the agency's decision, however, the Court avoided a direct confrontation by construing the relevant statutory provisions to require a threshold showing of the existence of a "significant" workplace risk before OSHA can impose further requirements. Not only did this place an obstacle in front of OSHA's regulatory efforts, but it was also widely interpreted as requiring OSHA to undertake a quantitative risk assessment to demonstrate the existence of a "significant" risk.
Deference
Industrial Union Dep't, AFL‑CIO v. Hodgson, 499 F.2d 467, 473‑76 (D.C. Cir. 1974).
The deferential position is persuasively expressed: "From extensive and often conflicting evidence, the Secretary in this case made numerous factual determinations. With respect to some of those questions, the evidence was such that the task consisted primarily of evaluating the data and drawing conclusions from it. The court can review that data in the record and determine whether it reflects substantial support for the Secretary's findings. But some of the questions involved in the promulgation of these standards are on the frontiers of scientific knowledge, and consequently as to them insufficient data is presently available to make a fully informed factual determination. Decision making must in that circumstance depend to a greater extent upon policy judgments and less upon purely factual analysis. . . . Judicial review of inherently legislative decisions of this sort is obviously an undertaking of different dimensions." Likewise, Ethyl Corp. v. EPA, discussed above, the court ruled: "The Administrator may apply his expertise to draw conclusions from suspected, but not completely substantiated, relationships between facts, from trends among facts, from theoretical projections from imperfect data, from probative preliminary data not yet certifiable as ‘fact,' and the like. We believe that a conclusion so drawn [to support] a risk assessment may, if rational, form the basis for health‑related regulations . . . ."Do you have any additions or
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Copyright © 2000.
John Applegate and Wendy Wagner.
Last modified September 28, 2000