This Article is organized as follows: Part I reviews the case law and commentary on judicial review of agency shifts in policy or practice, focusing on the technocratic case for deference and how recent political realities call such deference into question. Part II sets forth the background and history regarding fuel economy standards, leading to the Obama Administration’s adoption of standards in 2012 and the “midterm” review of those standards that Obama’s EPA declared final as of January 2017. Part II also reviews the legal issues surrounding Trump’s EPA’s “re-opening” of the midterm review. We suggest how courts could, and should, consider any forthcoming dilution in the standards proposed by EPA. Part III takes up objections to our call for a less deferential judicial posture and, in particular, considers the objection that judges themselves may be hyper-polarized. Part III also considers whether judges simply lack the capacity to ferret out the difference between “alternative facts” and actual facts. We readily acknowledge that judicial detachment and competencies have limits but maintain that, overall, we all will be better off if judges take a genuinely hard look at agency policy shifts and thereby encourage agencies to operate in the shadow of such scrutiny. Such review could prompt agencies to ground their policy shifts in a considered account of why the available facts better support a new policy rather than the previous one and, if they cannot do that, to forego policy shifts. Alternatively, such review could lead agencies to disclaim a factual basis for their policy shifts and instead explain those shifts in terms of their values and ideology, inviting the courts to decide whether those values and ideology are permissible bases for changing policy under substantive statutes and the Administrative Procedure Act. We think either of these effects would be preferable to judicial rubber-stamping of agency decisions that are purportedly based on factual or technical criteria but in reality lack factual or technical justification.
David A. Dana & Michael Barsa,
Judicial Review in an Age of Hyper-Polarization and Alternative Facts,
San Diego J. Climate & Energy L.
Available at: https://digital.sandiego.edu/jcel/vol9/iss1/5