Environmental Law's Greatest Tragedy

Like many others, I think the nation’s system of environmental laws and regulations, both at the state and federal level, is broken and its problems need to be addressed. One of the biggest problems can be summed up in two words: “agency deference.” “Agency deference” is the judicial doctrine that precludes judges from revisiting administrative agency decisions (s/a those made by the Bureau of Land Management, the Fish and Wildlife Service, and the Forest Service) except in the most extreme circumstances. It’s also the doctrine that has made it nearly impossible for there to be any independent and dispassionate review of decisions made by federal agencies that have become more like industry enablers than hard-nosed neutral regulators. The seminal case outlining the doctrine of agency deference is the 1984 decision in Chevron v. NRDC. In that case, the U.S. Supreme Court explicitly outlined the “agency deference” doctrine. The agency deference doctrine essentially stakes out the territory of administrative agencies and courts in preventing and remediating pollution. The Supreme Court essentially determined that a court’s role in engaging the environmental law framework is very limited; the primary responsibility for environmental protection rests with administrative agencies. When a court reviews an agency determination about an environmental matter or an interpretation of an environmental statute or regulation, it must assume an exceptionally deferential posture, only re-visiting the agency decision if it’s “arbitrary”, “capricious” or “manifestly contrary to the statute” – vague concepts that readily give judges the opportunity to evade deciding a difficult issue because they’re perceived as too technical or complicated...more