ENVIRONMENTAL LAW
ASSIGNMENT 8
Substantive Judicial Review of Agency Action:
The “Hard Look” Doctrine
“Heaven gives its glimpses only to those
Not in position to look too close.”
Robert Frost, A Passing Glimpse.
Reading:
Citizens to Preserve Overton Park v. Volpe
APA §§ 551, 553 & 701-706
Notes and Questions:
1.
The topic of this and the next assignment is the standard by which the federal courts
review agency action on the merits. We begin with the landmark case of Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402 (1971).
From today’s perspective, Overton Park stands as a textbook of basic administrative law.
At the time of the Supreme Court’s decision, however, the opinion was revolutionary in several
respects. First, the Court held that all agency actions are presumptively subject to judicial
review under the Administrative Procedure Act. Before 1971, most observers did not believe
that so-called "other agency action" (i.e., informal agency decisions that are not rulemaking,
adjudication, licensing, sanctions, or relief as defined in APA § 551(13)) was subject to judicial
review. See APA § 701(b)(2). Second, the Court's narrow interpretation of the exception for
action "committed to agency discretion by law" set forth in section 701(a)(2) meant that most
agency decisions would be subject to judicial review under the APA. Third, the "whole record"
requirement announced in Overton Park forced the agencies to make a paper trail to justify their
decisions and frequently led agencies to solicit testimony and to conduct hearings before acting.
Fourth, and perhaps most importantly,
Overton Park represents a transition from political to judicial controls over decisions
broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that
transition is not universally applauded. One can easily find in decisions and legal literature today
continuing hesitation over how deeply the courts should be engaged in controlling matters
susceptible of political resolution – whether the gains in legality are not overmatched by losses to
gridlock and inertia, whether the resulting system is not too open to the tactics of
obstreperousness and delay. But the transition was striking and quick. The late sixties and early
seventies saw an explosion of new national legislation on social and environmental issues that
often provided explicitly or implicitly for citizen remedies. Four scientists founded the
Environmental Defense Fund in 1967, as part of their effort to halt the use of the pesticide DDT
that devastated raptor populations by weakening their eggshells. In 1968, recent law school
1
graduates founded Washington’s Center for Law and Social Policy, a pioneering effort. Law
Reports devoted to environmental law began to emerge in 1969, the year the National
Environmental Policy Act was enacted. Newly minted lawyers established the Natural Resources
Defense Council in 1970. In that year, too, as clinical legal education began, young lawyerteachers at a Columbia Law School program on law and welfare brought to the Supreme Court –
and won – Goldberg v. Kelly and Barlow v. Collins (one of a pair of cases significantly extending
standing doctrine that year). The Sierra Club established its Legal Defense Fund, and Ralph
Nader his Public Citizen, in 1971. In many respects, Overton Park marked the turn.
Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe, in PETER L. STRAUS ED.,
ADMINISTRATIVE LAW STORIES 238 (Foundation Press 2006).
2.
Why did the Supreme Court decide that the Secretary of Transportation violated the
APA? What is the value of having Cabinet-level decisions made on the basis of a record and
with a statement of the explanation for the decision? Is this requirement likely to result in better
agency decisionmaking?
3.
Do you agree with the Court that the Secretary's decision in Overton Park was not
"committed to agency discretion by law" according to section 701(a)(2) of the APA? What is the
meaning of the Court's "no law to apply" standard? Is this standard consistent with the text of
section 701(a)(2)?
4.
As a practical matter, what are the differences among the various standards of judicial
review set forth in APA § 706(2)? Why did the Court conclude that the arbitrary and capricious
standard of § 706(2)(A) is the presumptive standard applicable to judicial review of most agency
decisions? When do the other standards apply?
5.
After Overton Park, the federal courts wrestled with the challenge of conducting a
thorough, probing, in-depth review of agency action without substituting their judgment for that
of the agency. One of the most influential cases was Judge Harold Leventhal's opinion for the
D.C. Circuit in Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970), cert.
denied, 403 U.S. 923 (1970), which announced the "hard look" doctrine. Judge Leventhal stated
that Overton Park "calls on the court to intervene not merely in case of procedural inadequacies,
or bypassing of the mandate in the legislative charter, but more broadly if the court becomes
aware, especially from a combination of danger signals, that the agency has not really taken a
hard look at the salient problem and has not genuinely engaged in reasoned decision-making."
Id. at 850.
6.
The precise meaning of the hard look doctrine was the subject of debate in the D.C.
Circuit's landmark set of opinions in Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) (en banc),
cert. denied, 426 U.S. 941 (1977), in which the Court upheld EPA's restrictions on the use of lead
in gasoline. Three of the judges engaged in a debate about the proper scope of judicial review
under the "hard look" doctrine of factual and policy decisions made by EPA in implementing the
Clean Air Act.
2
Writing for a majority of the D.C. Circuit, Judge J. Skelly Wright observed that the
arbitrary and capricious
standard of review is a highly deferential one. It presumes agency action to be valid.
Moreover, it forbids the court's substituting its judgment for that of the agency, and
requires affirmance if a rational basis exists for the agency's decision.
This is not to say, however, that we must rubber-stamp the agency decision as
correct. To do so would render the appellate process a superfluous (although timeconsuming) ritual. Rather, the reviewing court must assure itself that the agency decision
was "based on a consideration of the relevant factors . . . ." Moreover, it must engage in a
"substantial inquiry" into the facts, one that is "searching and careful." Citizens to
Preserve Overton Park v. Volpe, supra, 401 U.S. at 415, 416. This is particularly true in
highly technical cases such as this one.
A court does not depart from its proper function when it undertakes a
study of the record, hopefully perceptive, even as to the evidence on
technical and specialized matters, for this enables the court to penetrate
to the underlying decisions of the agency, to satisfy itself that the agency
has exercised a reasoned discretion, with reasons that do not deviate from
or ignore the ascertainable legislative intent.
Greater Boston Television Corp. v. FCC, 143 U.S. App. D.C. 383, 392, 444 F.2d 841,
850 (1970), cert. denied, 403 U.S. 923 (1971).
There is no inconsistency between the deferential standard of review and the
requirement that the reviewing court involve itself in even the most complex evidentiary
matters; rather, the two indicia of arbitrary and capricious review stand in careful balance.
The close scrutiny of the evidence is intended to educate the court. It must understand
enough about the problem confronting the agency to comprehend the meaning of the
evidence relied upon and the evidence discarded; the questions addressed by the agency
and those bypassed; the choices open to the agency and those made. The more technical
the case, the more intensive must be the court's effort to understand the evidence, for
without an appropriate understanding of the case before it the court cannot properly
perform its appellate function. But that function must be performed with conscientious
awareness of its limited nature. The enforced education into the intricacies of the
problem before the agency is not designed to enable the court to become a super-agency
that can supplant the agency's expert decisionmaker. To the contrary, the court must give
due deference to the agency's ability to rely on its own developed expertise. The
immersion in the evidence is designed solely to enable the court to determine whether the
agency decision was rational and based on consideration of the relevant factors. It is
settled that we must affirm decisions with which we disagree so long as this test is met.
Thus, after our careful study of the record, we must take a step back from the
agency decision. We must look at the decision not as the chemist, biologist or statistician
that we are qualified neither by training nor experience to be, but as a reviewing court
exercising our narrowly defined duty of holding agencies to certain minimal standards of
rationality. "Although [our] inquiry into the facts is to be searching and careful, the
ultimate standard of review is a narrow one." Citizens to Preserve Overton Park v. Volpe,
3
supra, 401 U.S. at 416. We must affirm unless the agency decision is arbitrary or
capricious. [541 F.2d at 34-36]
Chief Judge David Bazelon took strong exception to the majority's conception of the
"hard look" doctrine. In a concurring opinion joined by Judge Carl McGowan, Judge Bazelon
wrote:
I agree with the court's construction of the statute that the Administrator is called
upon to make "essentially legislative policy judgments" in assessing risks to public
health. But I cannot agree that this automatically relieves the Administrator's decision
from the "procedural . . . rigor proper for questions of fact." Quite the contrary, this case
strengthens my view that in cases of great technological complexity, the best way for
courts to guard against unreasonable or erroneous administrative decisions is not for the
judges themselves to scrutinize the technical merits of each decision. Rather, it is to
establish a decisionmaking process that assures a reasoned decision that can be held up to
the scrutiny of the scientific community and the public. This record provides vivid
demonstration of the dangers implicit in the contrary view, ably espoused by Judge
Leventhal, which would have judges "steeping" themselves "in technical matters to
determine whether the agency 'has exercised a reasoned discretion.'" It is one thing for
judges to scrutinize FCC judgments concerning diversification of media ownership to
determine if they are rational. But I doubt judges contribute much to improving the
quality of the difficult decisions which must be made in highly technical areas when they
take it upon themselves to decide, as did the panel in this case, that "in assessing the
scientific and medical data the Administrator made clear errors of judgment." The
process of making a de novo evaluation of the scientific evidence inevitably invites
judges of opposing views to make plausible-sounding, but simplistic, judgments of the
relative weight to be afforded various pieces of technical data.
It is true that, where, as here, a panel has reached the result of invalidating
agency action by undue involvement in the uncertainties of the typical informal
rulemaking record, the court en banc will be tempted to justify its affirmation of the
agency by confronting the panel on its own terms. But this is a temptation which, if not
resisted, will not only impose severe strains upon the energies and resources of the court
but also compound the error of the panel in making legislative policy determinations
alien to its true function. We would be wiser to heed the admonition of the Supreme
Court that: "[e]xperience teaches . . . that the affording of procedural safeguards, which
by their nature serve to illuminate the underlying facts, in itself often operates to prevent
erroneous decisions on the merits from occurring."
Because substantive review of mathematical and scientific evidence by
technically illiterate judges is dangerously unreliable, I continue to believe we will do
more to improve administrative decisionmaking by concentrating our efforts on
strengthening administrative procedures:
When administrators provide a framework for principled decision
making, the result will be to diminish the importance of judicial review
by enhancing the integrity of the administrative process, and to improve
the quality of judicial review in those cases where judicial review is
sought.
4
[Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584, 598 (D.C. Cir. 1971).] It
does not follow that courts may never properly find that an administrative decision in a
scientific area is irrational. But I do believe that in highly technical areas, where our
understanding of the import of the evidence is attenuated, our readiness to review
evidentiary support for decisions must be correspondingly restrained.
As I read the court's opinion, it severely limits judicial weighing of the evidence
by construing the Administrator's decision to be a matter of "legislative policy," and
consequently not subject to review with the "substantive rigor proper for questions of
fact." Since this result would bar the panel's close analysis of the evidence, it satisfies my
concerns. [541 F.2d at 66-67]
Judge Harold Leventhal also wrote a concurring opinion to defend the "hard look"
doctrine:
I concur without reservation in the excellent opinion for the court. I write an
additional word only because of observations in the concurring opinion authored by Chief
Judge Bazelon. I would not have thought they required airing today, since they in no way
relate, so far as I can see, to the court's en banc opinion. But since they have been floated
I propose to bring them to earth, though I can here present only the highlights of analysis.
What does and should a reviewing court do when it considers a challenge to technical
administrative decisionmaking? In my view, the panel opinion in this case overstepped
the bounds of proper judicial supervision in its willingness to substitute its own scientific
judgments for that of the EPA. In an effort to refute that approach convincingly the panel
dissent may have overreacted and responded too much in kind. In a kind of surrebuttal
against such overzealousness, Judge Bazelon has also overreacted. His opinion if I read
it right advocates engaging in no substantive review at all, whenever the substantive
issues at stake involve technical matters that the judges involved consider beyond their
individual technical competence.
If he is not saying that, if he agrees there must be some substantive review, then I
am at a loss to discern its significance. Certainly it does not help those seeking
enlightenment to recognize when the difference in degree of substantive review becomes
a difference in kind.
Taking the opinion in its fair implication, as a signal to judges to abstain from
any substantive review, it is my view that while giving up is the easier course, it is not
legitimately open to us at present. In the case of legislative enactments, the sole
responsibility of the courts is constitutional due process review. In the case of agency
decisionmaking the courts have an additional responsibility set by Congress. Congress
has been willing to delegate its legislative powers broadly and courts have upheld such
delegation because there is court review to assure that the agency exercises the delegated
power within statutory limits, and that it fleshes out objectives within those limits by an
administration that is not irrational or discriminatory. Nor is that envisioned judicial role
ephemeral, as Overton Park makes clear.
Our present system of review assumes judges will acquire whatever technical
knowledge is necessary as background for decision of the legal questions. It may be that
5
some judges are not initially equipped for this role, just as they may not be technically
equipped initially to decide issues of obviousness and infringement in patent cases. If
technical difficulties loom large, Congress may push to establish specialized courts. Thus
far, it has proceeded on the assumption that we can both have the important values
secured by generalist judges and rely on them to acquire whatever technical background
is necessary.
The aim of the judges is not to exercise expertise or decide technical questions,
but simply to gain sufficient background orientation. Our obligation is not to be
jettisoned because our initial technical understanding may be meagre when compared to
our initial grasp of FCC or freedom of speech questions. When called upon to make de
novo decisions, individual judges have had to acquire the learning pertinent to complex
technical questions in such fields as economics, science, technology and psychology. Our
role is not as demanding when we are engaged in review of agency decisions, where we
exercise restraint, and affirm even if we would have decided otherwise so long as the
agency's decisionmaking is not irrational or discriminatory. The substantive review of
administrative action is modest, but it cannot be carried out in a vacuum of
understanding. Better no judicial review at all than a charade that gives the imprimatur
without the substance of judicial confirmation that the agency is not acting unreasonably.
Once the presumption of regularity in agency action is challenged with a factual
submission, and even to determine whether such a challenge has been made, the agency's
record and reasoning has to be looked at. If there is some factual support for the
challenge, there must be either evidence or judicial notice available explicating the
agency's result, or a remand to supply the gap.
Mistakes may mar the exercise of any judicial function. While in this case the
panel made such a mistake, it did not stem from judicial incompetence to deal with
technical issues, but from confusion about the proper stance for substantive review of
agency action in an area where the state of current knowledge does not generate
customary definitiveness and certainty. In other cases the court has dealt ably with these
problems, without either abandoning substantive review or ousting the agency's action for
lack of factual underpinning.
On issues of substantive review, on conformance to statutory standards and
requirements of rationality, the judges must act with restraint. Restraint, yes, abdication,
no. [Id. at 68-69]
7.
What is the difference between the opinions of Judges Wright and Leventhal and the
opinion of Judge Bazelon joined by Judge McGowan? Who has the better of the argument?
In thinking about this question, you may want to look through one of the following,
which illustrate the complexity of many of the technical and scientific questions that the courts
must consider in reviewing decisions made by EPA and other federal environmental agencies:
Sierra Club v. Costle, 657 F. 2d 298 (D.C. Cir. 1981), a 112-page, 540-footnote opinion with 20
pages of supporting diagrams and tables, which upheld EPA's Clean Air Act regulations that
required a 70% to 90% reduction in sulfur dioxide and particle emissions from new coal-burning
power plants over that which would be emitted without emissions control; Chemical
Manufacturers Association v. EPA, 870 F.2d 177 (5th Cir. 1989), a 90-page opinion based on a
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600,000 page administrative record and 3,000 pages of briefing that partly affirmed and partly
reversed EPA's effluent discharge standards under the Clean Water Act for the organic chemicals,
plastics, and synthetic fibers industries; and National Petrochemical & Refiners Ass'n v. EPA, 287
F.3d 1130 (D.C. Cir. 2002), a relatively concise 21-page opinion that affirmed EPA’s rules
requiring a 95% reduction in emission of nitrous oxides, non-methane hydrocarbons, and
particulate matter from diesel engines based on its predictions that new technologies would
enable achievement of these standards by model year 2007.
8.
Is it really possible for judges to understand enough about engineering, chemistry,
epidemiology, marine biology, hydrology, botany, nuclear physics, and other scientific and
technological disciplines to enable them to ascertain whether the agency considered all relevant
facts and made a reasoned scientific and policy judgment based on those facts?
9.
Is Judge Bazelon's solution the answer? Would it be better for judges to acknowledge
their ignorance of science and instead attempt to ensure that the agency applies procedures that
allow competing scientists to argue their cases to the agency?
10.
Whatever the conclusion, the Supreme Court put the matter to rest in Vermont Yankee
Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978). In that case,
the D.C. Circuit reversed the Nuclear Regulatory Commission’s decision to grant a license for
the Vermont Yankee nuclear power plant. Although the Commission granted the license after
extensive public hearings, it did not consider the risk and potential environmental consequences
of a radiation leak during the various phases of the uranium fuel cycle. Rather, the Commission
decided to defer the fuel cycle risk assessment for later rulemaking, at which it would adopt a
generic risk standard that it would incorporate into all prior and subsequent licensing decisions.
The Court of Appeals held that the Commission was required to adopt procedures in each
licensing hearing to facilitate the consideration of the risk and environmental effects of radiation
leakage. Writing for the Court, Judge Bazelon stated:
Many procedural devices for creating a genuine dialogue on these issues were
available to the agency—including informal conferences between intervenors and staff,
document discovering, interrogatories, technical advisory committees comprised of
outside experts with differing perspectives, limited cross-examination, funding
independent research by intervenors, detailed annotation of technical reports, surveys of
existing literature, memoranda explaining methodology. We do not presume to intrude on
the agency's province by dictating to it which, if any, of these devices it must adopt to
flesh out the record. It may be that no combination of the procedures mentioned above
will provide adequate, and the agency will be required to develop new procedures to
accomplish the innovative task of implementing NEPA through rule making. On the
other hand, the procedures the agency adopted in this case, if administered in a more
sensitive, deliberate manner, might suffice. Whatever techniques the Commission adopts,
before it promulgates a rule limiting further consideration of waste disposal and
reprocessing issues, it must in one way or another generate a record in which the factual
issues are fully developed.
7
Natural Resources Defense Council v. Nuclear Regulatory Commission, 547 F.2d 633, 653-54
(D.C. Cir. 1976).
The Supreme Court reversed in an unusually harsh opinion. Writing for a unanimous
Court, Justice Rehnquist began the opinion with a review of the history of section 553 of the
APA. He then observed that
generally speaking this section of the Act established the maximum procedural
requirements which Congress was willing to have the courts impose upon agencies in
conducting rulemaking proceedings. Agencies are free to grant additional procedural
rights in the exercise of their discretion, but reviewing courts are generally not free to
impose them if the agencies have not chosen to grant them.
The Court then stated that it had granted certiorari because of its concern that the D.C.
Circuit "had seriously misread or misapplied this statutory and decisional law cautioning
reviewing courts against engrafting their own notions of proper procedures upon agencies
entrusted with substantive functions by Congress."
After reviewing the Court of Appeals' opinion, the Supreme Court concluded that it is
"absolutely clear [that] absent constitutional constraints or extremely compelling circumstances
the 'administrative agencies "should be free to fashion their own rules of procedure and to pursue
methods of inquiry capable of permitting them to discharge their multitudinous duties."'"
According to the Court, there are
compelling reasons for construing [section 553 of the APA] in this manner. In the first
place, if courts continually review agency proceedings to determine whether the agency
employed procedures which were, in the court's opinion, perfectly tailored to reach what
the court perceives to be the "best" or "correct" result, judicial review would be totally
unpredictable. And the agencies, operating under this vague injunction to employ the
"best" procedures and facing the threat of reversal if they did not, would undoubtedly
adopt full adjudicatory procedures in every instance. Not only would this totally disrupt
the statutory scheme, through which Congress enacted "a formula upon which opposing
social and political forces have come to rest," Wong Yang Sung v. McGrath, 339 U.S.
[33,] 40 [(1950)], but all the inherent advantages of informal rulemaking would be totally
lost.
Secondly, it is obvious that the court in these cases reviewed the agency's choice
of procedures on the basis of the record actually produced at the hearing and not on the
basis of the information available to the agency when it made the decision to structure the
proceedings in a certain way. This sort of Monday morning quarterbacking not only
encourages but almost compels the agency to conduct all rulemaking proceedings with
the full panoply of procedural devices normally associated only with adjudicatory
hearings.
Finally, and perhaps most importantly, this sort of review fundamentally
misconceives the nature of the standard for judicial review of an agency rule. The court
below uncritically assumed that additional procedures will automatically result in a more
adequate record because it will give interested parties more of an opportunity to
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participate in and contribute to the proceedings. But informal rulemaking need not be
based solely on the transcript of a hearing held before an agency. Indeed, the agency
need not even hold a formal hearing. See 5 U.S.C. § 553(c). Thus, the adequacy of the
"record" in this type of proceeding is not correlated directly to the type of procedural
devices employed, but rather turns on whether the agency has followed the statutory
mandate of the Administrative Procedure Act or other relevant statutes. If the agency is
compelled to support the rule which it ultimately adopts with the type of record produced
only after a full adjudicatory hearing, it simply will have no choice but to conduct a full
adjudicatory hearing prior to promulgating every rule. In sum, this sort of unwarranted
judicial examination of perceived procedural shortcomings of a rulemaking proceeding
can do nothing but seriously interfere with that process prescribed by Congress. [Id. at
546-48]
11.
Justice Scalia, at the time a law professor at the University of Chicago, offered the
following observation about the Vermont Yankee debate:
As a practical matter, the D.C. Circuit is something of a resident manager, and the
Supreme Court an absentee landlord. It is the Court of Appeals that must be satisfied, on
a day-to-day basis, and the costs of incurring its disapproval are high in terms of delay
and uncertainty in agency programs. In the area here under discussion, it would almost
always be preferable, in the individual case, to provide the additional procedures which
one had reason to believe the Court of Appeals would require, rather than to gamble on
Supreme Court review. Even when obtained, that comes at the expense of a year's delay
—followed, if one loses, by a recommencement of proceedings at the agency level.
Ironically, it is precisely when the agency has most need of expedition that it also has the
most incentive to provide the most cumbersome procedures which the Court of Appeals
(though not the Supreme Court) may require.
Antonin Scalia, Vermont Yankee: The APA, The D.C. Circuit, and the Supreme Court, 1978 Sup.
Ct. Rev. 345, 371.
12.
Vermont Yankee thus resolved the dispute between the proponents of the "hard look"
doctrine and the administrative proceduralists in favor of the former. Many legal scholars also
viewed the case as signaling the end of the "hard look" doctrine itself and replacing it with more
of a "soft glance" approach to judicial review. See, e.g., WILLIAM H. RODGERS JR.
ENVIRONMENTAL LAW, 2D ED. (WEST 1994), at 95. We will pick up that part of the story in the
next assignment.
13.
Despite the judicial deference mandated by cases such as Overton Park and Vermont
Yankee, the courts do occasionally overturn an agency decision under section 706 of the APA or
some other applicable statute.
In Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance
Co., 463 U.S. 29 (1983), for example, the Supreme Court reviewed the National Highway
Transportation Safety Administration's 1981 decision to rescind the passive restraint requirement
applicable to all automobiles produced in or imported into the United States. Based on the
industry's plan to install automatic, but detachable, seat belts in 99 percent of the cars sold in the
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domestic market, NHTSA rescinded a regulation adopted during the Carter Administration that
required car manufacturers to install either airbags or non-detachable seat belts in all passenger
cars by model year 1984. The decision was challenged by a variety of consumer groups and
insurance companies.
On review, the Supreme Court held that the agency had acted arbitrarily and capriciously.
Although the choice of passive restraint was ultimately left to the discretion of NHTSA, the
Court concluded that the agency was obligated to explain its decision to rescind the earlier
regulation. Writing for the majority, Justice White delivered a brief summary of the standards by
which the courts review agency rulemaking:
Unlike the Court of Appeals, we do not find the appropriate scope of judicial
review to be the "most troublesome question" in the case. Both the Motor Vehicle Safety
Act and the 1974 Amendments concerning occupant crash protection standards indicate
that motor vehicle safety standards are to be promulgated under the informal rulemaking
procedures of § 553 of the Administrative Procedure Act. The agency's action in
promulgating such standards therefore may be set aside if found to be "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §
706(2)(A). Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414 (1971);
Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281 (1974).
We believe that the rescission or modification of an occupant protection standard is
subject to the same test. * * * [T]he revocation of an extant regulation is substantially
different than a failure to act. Revocation constitutes a reversal of the agency's former
views as to the proper course. A "settled course of behavior embodies the agency's
informed judgment that, by pursuing that course, it will carry out the policies committed
to it by Congress. There is, then, at least a presumption that those policies will be
carried out best if the settled rule is adhered to." Atchison, T. & S.F.R. Co. v. Wichita Bd.
of Trade, 412 U.S. 800, 80708 (1973). Accordingly, an agency changing its course by
rescinding a rule is obligated to supply a reasoned analysis for the change beyond that
which may be required when an agency does not act in the first instance.
In so holding, we fully recognize that "regulatory agencies do not establish rules
of conduct to last forever," American Trucking Assoc., Inc. v. Atchison, T. & S.F.R. Co.,
387 U.S. 397, 416 (1967), and that an agency must be given ample latitude to "adapt their
rules and policies to the demands of changing circumstances." Permian Basin Area Rate
Cases, 390 U.S. 747, 784 (1968). But the forces of change do not always or necessarily
point in the direction of deregulation. In the abstract, there is no more reason to presume
that changing circumstances require the rescission of prior action, instead of a revision in
or even the extension of current regulation. If Congress established a presumption from
which judicial review should start, that presumption—contrary to petitioners' views—is
not against safety regulation, but against changes in current policy that are not justified by
the rulemaking record. While the removal of a regulation may not entail the monetary
expenditures and other costs of enacting a new standard, and accordingly, it may be easier
for an agency to justify a deregulatory action, the direction in which an agency chooses to
move does not alter the standard of judicial review established by law.
The Department of Transportation accepts the applicability of the "arbitrary and
capricious" standard. It argues that under this standard, a reviewing court may not set
aside an agency rule that is rational, based on consideration of the relevant factors and
10
within the scope of the authority delegated to the agency by the statute. We do not
disagree with this formulation.1 The scope of review under the "arbitrary and capricious"
standard is narrow and a court is not to substitute its judgment for that of the agency.
Nevertheless, the agency must examine the relevant data and articulate a satisfactory
explanation for its action including a "rational connection between the facts found and the
choice made." Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962). In
reviewing that explanation, we must "consider whether the decision was based on a
consideration of the relevant factors and whether there has been a clear error of
judgment." Bowman Transp. Inc. v. Arkansas-Best Freight System, supra, 419 U.S. at
285; Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 416. Normally, an
agency rule would be arbitrary and capricious if the agency has relied on factors which
Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in view
or the product of agency expertise. The reviewing court should not attempt itself to make
up for such deficiencies: "We may not supply a reasoned basis for the agency's action
that the agency itself has not given." SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
We will, however, "uphold a decision of less than ideal clarity if the agency's path may
reasonably be discerned." Bowman Transp. Inc. v. ArkansasBest Freight System, supra,
419 U.S. at 286. For purposes of this case, it is also relevant that Congress required a
record of the rulemaking proceedings to be compiled and submitted to a reviewing court,
15 U.S.C. § 1394, and intended that agency findings under the Motor Vehicle Safety Act
would be supported by "substantial evidence on the record considered as a whole." S.
Rep. No. 1301, 89th Cong., 2d Sess. p. 8 (1966); H.R. Rep. No. 1776, 89th Cong., 2d
Sess. p. 21 1966), U.S. Code Cong. & Admin. News 1966, p. 2716. [463 U.S. at 40-44]
In the course of reversing NHTSA's summary rejection of the airbag as a potential
alternative to complete rescission of the passive restraint regulation, the Court addressed the
automobile industry's argument that Vermont Yankee requires the courts to defer to the agency's
choice of the proper alternatives to consider during rulemaking proceedings:
The first and most obvious reason for finding the rescission arbitrary and
capricious is that NHTSA apparently gave no consideration whatever to modifying the
Standard to require that airbag technology be utilized. Standard 208 sought to achieve
automatic crash protection by requiring automobile manufacturers to install either of two
passive restraint devices: airbags or automatic seatbelts. There was no suggestion in the
long rulemaking process that led to Standard 208 that if only one of these options were
feasible, no passive restraint standard should be promulgated. Indeed, the agency's
original proposed standard contemplated the installation of inflatable restraints in all cars.
Automatic belts were added as a means of complying with the standard because they
were believed to be as effective as airbags in achieving the goal of occupant crash
protection. At that time, the passive belt approved by the agency could not be detached.
Only later, at a manufacturer's behest, did the agency approve of the detachability feature
The Department of Transportation suggests that the arbitrary and capricious standard requires no
more than the minimum rationality a statute must bear in order to withstand analysis under the Due
Process Clause. We do not view as equivalent the presumption of constitutionality afforded legislation
drafted by Congress and the presumption of regularity afforded an agency in fulfilling its statutory
mandate.
1
11
—and only after assurances that the feature would not compromise the safety benefits of
the restraint. Although it was then foreseen that 60% of the new cars would contain
airbags and 40% would have automatic seatbelts, the ratio between the two was not
significant as long as the passive belt would also assure greater passenger safety.
* * * Given the effectiveness ascribed to airbag technology by the agency, the
mandate of the Safety Act to achieve traffic safety would suggest that the logical response
to the faults of detachable seatbelts would be to require the installation of airbags. At the
very least this alternative way of achieving the objectives of the Act should have been
addressed and adequate reasons given for its abandonment. But the agency not only did
not require compliance through airbags, it did not even consider the possibility in its 1981
rulemaking. Not one sentence of its rulemaking statement discusses the airbags-only
option. Because, as the Court of Appeals stated, "NHTSA's … analysis of airbags was
nonexistent," 680 F.2d at 236, what we said in Burlington Truck Lines v. United States,
371 U.S. at 167, is apropos here:
There are no findings and no analysis here to justify the choice made, no
indication of the basis on which the [agency] exercised its expert discretion. We are not
prepared to and the Administrative Procedure Act will not permit us to accept such . . .
practice. . . . Expert discretion is the lifeblood of the administrative process, but "unless
we make the requirements for administrative action strict and demanding, expertise, the
strength of modern government, can become a monster which rules with no practical
limits on its discretion." New York v. United States, 342 U.S. 882, 884 (dissenting
opinion).
***
Petitioners also invoke our decision in Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519 (1978), as though it were a talisman under which any agency
decision is by definition unimpeachable. Specifically, it is submitted that to require an
agency to consider an airbags-only alternative is, in essence, to dictate to the agency the
procedures it is to follow. Petitioners both misread Vermont Yankee and misconstrue the
nature of the remand that is in order. In Vermont Yankee, we held that a court may not
impose additional procedural requirements upon an agency. We do not require today any
specific procedures which NHTSA must follow. Nor do we broadly require an agency to
consider all policy alternatives in reaching decision. It is true that a rulemaking "cannot
be found wanting simply because the agency failed to include every alternative device
and thought conceivable by the mind of man . . . regardless of how uncommon or
unknown that alternative may have been . . . ." 435 U.S. at 551. But the airbag is more
than a policy alternative to the passive restraint standard; it is a technological alternative
within the ambit of the existing standard. We hold only that given the judgment made in
1977 that airbags are an effective and cost-beneficial lifesaving technology, the
mandatory passive-restraint rule may not be abandoned without any consideration
whatsoever of an airbag-sonly requirement. [463 U.S. at 46-51]
In dissent, Justice Rehnquist, joined by Chief Justice Burger, Justice Powell, and Justice
O’Connor, argued:
12
The agency's changed view of the standard seems to be related to the election of
a new President of a different political party. It is readily apparent that the responsible
members of one administration may consider public resistance and uncertainties to be
more important than do their counterparts in a previous administration. A change in
administration brought about by the people casting their votes is a perfectly reasonable
basis for an executive agency's reappraisal of the costs and benefits of its programs and
regulations. As long as the agency remains within the bounds established by Congress,2
it is entitled to assess administrative records and evaluate priorities in light of the
philosophy of the administration. [463 U.S. at 73]
14.
Is the late Chief Justice's view of the administrative process more realistic than that of the
majority? Should Justice Rehnquist's real politic analysis be incorporated into the arbitrary and
capricious standard of review of agency action?
15.
Controversies over construction of highways through parks are still with us. A few years
ago, the California Coastal Commission and the U.S. Department of Commerce denied a
proposal to build a private toll-road through a popular coastal park:
Will Carless, Park Toll Road Plan Rejected in California
N.Y. Times, Feb. 8, 2008
After a marathon public hearing in which hundreds of people spoke, the California
Coastal Commission voted late Wednesday to deny approval for a toll road through a popular
beach state park. The 8-to-2 vote against the road, which would bisect California’s fifth-mostvisited state park, San Onofre State Beach in north San Diego County, was seen as a significant
victory for the region’s environmental movement and a major setback to a 20-year-effort to ease
traffic congestion in the increasing sprawl of southern Orange County.
The eight commissioners agreed with the agency’s staff, which had found that the road, to
cost an estimated $875 million, would threaten wildlife habitats, camping areas and a cherished
surfing beach, Trestles. “This project drives a stake through the heart of the Coastal Act,” said
Commissioner Sara Wan, adding, “This looks like something from the 1950s, not something from
the 21st century, when we know how endangered our planet is.”
The Transportation Corridor Agencies, the quasi-public authority that would build the
road, had argued that it would not affect the beach, wildlife habitats or campgrounds. And
supporters argued that the project would reduce air pollution because drivers would burn less gas,
and that it was needed in evacuations for emergencies like wildfires. Officials said the
transportation agency would immediately appeal the commission’s decision to the United States
Secretary of Commerce, but the project also faces numerous lawsuits, including two filed by a
former state attorney general, Bill Lockyer, as well as regulatory hurdles that make it unlikely it
would be awarded a crucial coastal development permit.
Of course, a new administration may not choose not to enforce laws of which it does not approve, or
to ignore statutory standards in carrying out its regulatory functions. But in this case, as the Court
correctly concludes, Congress has not required the agency to require passive restraints.
2
13
The coastal commission meeting was moved to the Del Mar Fairgrounds north of San
Diego to accommodate thousands of opponents and supporters of the toll road, who shouted
slogans and positions at one another. Staff members said the crowd was the biggest in the panel’s
36-year history, and the atmosphere was often more social than political. “I’m calling this the
Woodstock of surfing and environmentalism,” said Serge Dedina, co-founder and executive
director of Wildcoast, an environmental protection group in Imperial Beach.
But there were also tearful pleas to save the park along with angry comments by union
workers that the construction jobs it would create were sorely needed. “I’ve been here all day and
I was just bawling when I heard the vote,” said BreAnne Custodio, a 27 year-old artist from San
Diego. “It’s been a very emotionally tasking day, but I am so, so pleased they did the right thing.”
Commerce Department Rejects California Coast Toll Road Bid
S.F. Chronicle, Dec. 18, 2008
A federal agency on Thursday rejected an appeal to build a toll road that would cut
through one of California's most popular state parks and pass near a world-class surf break. The
U.S. Department of Commerce said there was a reasonable alternate route for the road. The
agency also disputed that building the road was vital to national security, which highway
proponents had argued.
The decision upholds a ruling by the California Coastal Commission against the 16-mile
road after opponents argued it would harm endangered species at San Onofre State Park and
block sediment flows that create famous surf breaks at a beach called Trestles. "Hooray, hooray,
hooray! I'm so delighted," said state Treasurer Bill Lockyer, who sued to stop the toll road twice
in his former post as state attorney general. "It's a great victory for California."
The Transportation Corridor Agencies chairman Jerry Amante said he was shocked and
disappointed. He said the agency would not decide on further legal action before a Jan. 8 board
meeting. "This decision is another blow to the Southern California economy, Amante said. "We
are now destined for gridlock and increased greenhouse emissions."
The toll authority had argued the $1.3 billion road would play a key role in national
security by providing an alternative to Interstate 5 if there is a wildfire or accident at the nearby
San Onofre nuclear power plant.
14
CITIZENS TO PRESERVE OVERTON PARK v. VOLPE
Supreme Court of the United States
401 U.S. 402 (1971)
Opinion of the Court by Mr. Justice MARSHALL, announced by Mr. Justice STEWART.
The growing public concern about the quality of our natural environment has prompted
Congress in recent years to enact legislation designed to curb the accelerating destruction of our
country's natural beauty. We are concerned in this case with § 4(f) of the Department of
Transportation Act of 1966, as amended,3 and § 18(a) of the Federal-Aid Highway Act of 1968,
23 U.S.C. § 138.4 These statutes prohibit the Secretary of Transportation from authorizing the
use of federal funds to finance the construction of highways through public parks if a "feasible
and prudent" alternative route exists. If no such route is available, the statutes allow him to
approve construction through parks only if there has been "all possible planning to minimize
harm" to the park.
Petitioners, private citizens as well as local and national conservation organizations,
contend that the Secretary has violated these statutes by authorizing the expenditure of federal
funds for the construction of a six-lane interstate highway through a public park in Memphis,
Tennessee. Their claim was rejected by the District Court, which granted the Secretary's motion
for summary judgment, and the Court of Appeals for the Sixth Circuit affirmed. After oral
argument, this Court granted a stay that halted construction and, treating the application for the
stay as a petition for certiorari, granted review. We now reverse the judgment below and remand
for further proceedings in the District Court.
3
It is hereby declared to be the national policy that special effort should be made to
preserve the natural beauty of the countryside and public park and recreation
lands, wildlife and waterfowl refuges, and historic sites. The Secretary of
Transportation shall cooperate and consult with the Secretaries of the Interior,
Housing and Urban Development, and Agriculture, and with the States in
developing transportation plans and programs that include measures to maintain
or enhance the natural beauty of the lands traversed. After August 23, 1968, the
Secretary shall not approve any program or project which requires the use of any
publicly owned land from a public park, recreation area, or wildlife and waterfowl
refuge of national, State, or local significance as determined by the Federal, State,
or local officials having jurisdiction thereof, or any land from an historic site of
national, State, or local significance as so determined by such officials unless (1)
there is no feasible and prudent alternative to the use of such land, and (2) such
program includes all possible planning to minimize harm to such park,
recreational area, wildlife and waterfowl refuge, or historic site resulting from
such use.
82 Stat. 824, 49 U.S.C. § 1653(f) (1964 ed., Supp. V).
4
[The text of this statute is almost verbatim the text of section 4(f) of the 1966 Act.—ed.]
15
Overton Park is a 342-acre city park located near the center of Memphis. The park
contains a zoo, a nine-hole municipal golf course, an outdoor theater, nature trails, a bridle path,
an art academy, picnic areas, and 170 acres of forest. The proposed highway, which is to be a
six-lane, high-speed, expressway, will sever the zoo from the rest of the park. Although the
roadway will be depressed below ground level except where it crosses a small creek, 26 acres of
the park will be destroyed. The highway is to be a segment of Interstate Highway I-40, part of
the National System of Interstate and Defense Highways. I-40 will provide Memphis with a
major east-west expressway which will allow easier access to downtown Memphis from the
residential areas on the eastern edge of the city.
Although the route through the park was approved by the Bureau of Public Roads in 1956
and by the Federal Highway Administrator in 1966, the enactment of § 4(f) of the Department of
Transportation Act prevented distribution of federal funds for the section of the highway
designated to go through Overton Park until the Secretary of Transportation determined whether
the requirements of § 4(f) had been met. Federal funding for the rest of the project was,
however, available; and the state acquired a right-of-way on both sides of the park. In April
1968, the Secretary announced that he concurred in the judgment of local officials that I-40
should be built through the park. And in September 1969 the State acquired the right-of-way
inside Overton Park from the city. Final approval for the project—the route as well as the design
—was not announced until November 1969, after Congress had reiterated in § 138 of the
Federal-Aid Highway Act that highway construction through public parks was to be restricted.
Neither announcement approving the route and design of I-40 was accompanied by a statement
of the Secretary's factual findings. He did not indicate why he believed there were no feasible
and prudent alternative routes or why design changes could not be made to reduce the harm to
the park.
Petitioners contend that the Secretary's action is invalid without such formal findings and
that the Secretary did not make an independent determination but merely relied on the judgment
of the Memphis City Council. They also contend that it would be "feasible and prudent" to route
I-40 around Overton Park either to the north or to the south. And they argue that if these
alternative routes are not "feasible and prudent," the present plan does not include "all possible"
methods for reducing harm to the park. Petitioners claim that I-40 could be built under the park
by using either of two possible tunneling methods,5 and they claim that, at a minimum, by using
advanced drainage techniques the expressway could be depressed below ground level along the
entire route through the park including the section that crosses the small creek.
Respondents argue that it was unnecessary for the Secretary to make formal findings, and
that he did, in fact, exercise his own independent judgment which was supported by the facts. In
the District Court, respondents introduced affidavits, prepared specifically for this litigation,
which indicated that the Secretary had made the decision and that the decision was supportable.
5
Petitioners argue that either a bored tunnel or a cut-and-cover tunnel, which is a fully
depressed route covered after construction, could be built. Respondents contend that the
construction of a tunnel by either method would greatly increase the cost of the project, would
create safety hazards, and because of increases in air pollution would not reduce harm to the
park.
16
These affidavits were contradicted by affidavits introduced by petitioners, who also sought to
take the deposition of a former Federal Highway Administrator who had participated in the
decision to route I-40 through Overton Park.
The District Court and the Court of Appeals found that formal findings by the Secretary
were not necessary and refused to order the deposition of the former Federal Highway
Administrator because those courts believed that probing of the mental processes of an
administrative decisionmaker was prohibited. And, believing that the Secretary's authority was
wide and reviewing courts' authority narrow in the approval of highway routes, the lower courts
held that the affidavits contained no basis for a determination that the Secretary had exceeded his
authority.
We agree that formal findings were not required. But we do not believe that in this case
judicial review based solely on litigation affidavits was adequate.
A threshold question—whether petitioners are entitled to any judicial review—is easily
answered. Section 701 of the Administrative Procedure Act provides that the action of "each
authority of the Government of the United States," which includes the Department of
Transportation, is subject to judicial review except where there is a statutory prohibition on
review or where "agency action is committed to agency discretion by law." In this case, there is
no indication that Congress sought to prohibit judicial review and there is most certainly no
"showing of 'clear and convincing evidence' of a . . . legislative intent" to restrict access to
judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967).
Similarly, the Secretary's decision here does not fall within the exception for action
"committed to agency discretion." This is a very narrow exception. Berger, Administrative
Arbitrariness and Judicial Review, 65 Col. L. Rev. 55 (1965). The legislative history of the
Administrative Procedure Act indicates that it is applicable in those rare instances where
"statutes are drawn in such broad terms that in a given case there is no law to apply." S. Rep. No.
752, 79th Cong., 1st Sess. 26 (1945).
Section 4(f) of the Department of Transportation Act and § 138 of the Federal-Aid
Highway Act are clear and specific directives. Both the Department of Transportation Act and
the Federal-Aid Highway Act provide that the Secretary "shall not approve any program or
project" that requires the use of any public parkland "unless (1) there is no feasible and prudent
alternative to the use of such land, and (2) such program includes all possible planning to
minimize harm to such park . . . ." This language is a plain and explicit bar to the use of federal
funds for construction of highways through parks—only the most unusual situations are
exempted.
Despite the clarity of the statutory language, respondents argue that the Secretary has
wide discretion. They recognize that the requirement that there be no "feasible" alternative route
admits of little administrative discretion. For this exemption to apply the Secretary must find
that as a matter of sound engineering it would not be feasible to build the highway along any
other route. Respondents argue, however, that the requirement that there be no other "prudent"
route requires the Secretary to engage in a wide-ranging balancing of competing interests. They
17
contend that the Secretary should weigh the detriment resulting from the destruction of parkland
against the cost of other routes, safety considerations, and other factors, and determine on the
basis of the importance that he attaches to these other factors whether, on balance, alternative
feasible routes would be "prudent."
But no such wide-ranging endeavor was intended. It is obvious that in most cases
considerations of cost, directness of route, and community disruption will indicate that parkland
should be used for highway construction whenever possible. Although it may be necessary to
transfer funds from one jurisdiction to another, there will always be a smaller outlay required
from the public purse when parkland is used since the public already owns the land and there
will be no need to pay for right-of-way. And since people do not live or work in parks, if a
highway is built on parkland no one will have to leave his home or give up his business. Such
factors are common to substantially all highway construction. Thus, if Congress intended these
factors to be on an equal footing with preservation of parkland there would have been no need
for the statutes.
Congress clearly did not intend that cost and disruption of the community were to be
ignored by the Secretary. But the very existence of the statutes indicates that protection of
parkland was to be given paramount importance. The few green havens that are public parks
were not to be lost unless there were truly unusual factors present in a particular case or the cost
or community disruption resulting from alternative routes reached extraordinary magnitudes. If
the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland
unless he finds that alternative routes present unique problems.
Plainly, there is "law to apply" and thus the exemption for action "committed to agency
discretion" is inapplicable. But the existence of judicial review is only the start: the standard for
review must also be determined. For that we must look to § 706 of the Administrative Procedure
Act, which provides that a "reviewing court shall . . . hold unlawful and set aside agency action,
findings, and conclusions found" not to meet six separate standards. In all cases agency action
must be set aside if the action was "arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law" or if the action failed to meet statutory, procedural, or constitutional
requirements. 5 U.S.C. §§ 706(2)(A), (B), (C), (D). In certain narrow, specifically limited
situations, the agency action is to be set aside if the action was not supported by "substantial
evidence." And in other equally narrow circumstances the reviewing court is to engage in a de
novo review of the action and set it aside if it was "unwarranted by the facts." 5 U.S.C. §§
706(2)(E), (F).
Petitioners argue that the Secretary's approval of the construction of I-40 through Overton
Park is subject to one or the other of these latter two standards of limited applicability. First,
they contend that the "substantial evidence" standard of § 706(2)(E) must be applied. In the
alternative, they claim that § 706(2)(F) applies and that there must be a de novo review to
determine if the Secretary's action was "unwarranted by the facts." Neither of these standards is,
however, applicable.
Review under the substantial-evidence test is authorized only when the agency action is
taken pursuant to a rulemaking provision of the Administrative Procedure Act itself, 5 U.S.C. §
18
553, or when the agency action is based on a public adjudicatory hearing. See 5 U.S.C. §§ 556,
557. The Secretary's decision to allow the expenditure of federal funds to build I-40 through
Overton Park was plainly not an exercise of a rulemaking function. And the only hearing that is
required by either the Administrative Procedure Act or the statutes regulating the distribution of
federal funds for highway construction is a public hearing conducted by local officials for the
purpose of informing the community about the proposed project and eliciting community views
on the design and route. 23 U.S.C. § 128. The hearing is non-adjudicatory, quasi-legislative in
nature. It is not designed to produce a record that is to be the basis of agency action—the basic
requirement for substantial-evidence review. See H. R. Rep. No. 1980, 79th Cong., 2d Sess.
Petitioners' alternative argument also fails. De novo review of whether the Secretary's
decision was "unwarranted by the facts" is authorized by § 706(2)(F) in only two circumstances.
First, such de novo review is authorized when the action is adjudicatory in nature and the agency
fact-finding procedures are inadequate. And, there may be independent judicial fact-finding
when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action. H. R. Rep. No. 1980, 79th Cong., 2d Sess. Neither situation exists
here.
Even though there is no de novo review in this case and the Secretary's approval of the
route of I-40 does not have ultimately to meet the substantial-evidence test, the generally
applicable standards of § 706 require the reviewing court to engage in a substantial inquiry.
Certainly, the Secretary's decision is entitled to a presumption of regularity. See, e.g., Pacific
States Box & Basket Co. v. White, 296 U.S. 176, 185 (1935); United States v. Chemical
Foundation, 272 U.S. 1, 1415 (1926). But that presumption is not to shield his action from a
thorough, probing, in-depth review.
The court is first required to decide whether the Secretary acted within the scope of his
authority. Schilling v. Rogers, 363 U.S. 666, 676-77 (1960). This determination naturally begins
with a delineation of the scope of the Secretary's authority and discretion. L. Jaffe, Judicial
Control of Administrative Action 359 (1965). As has been shown, Congress has specified only a
small range of choices that the Secretary can make. Also involved in this initial inquiry is a
determination of whether on the facts the Secretary's decision can reasonably be said to be within
that range. The reviewing court must consider whether the Secretary properly construed his
authority to approve the use of parkland as limited to situations where there are no feasible
alternative routes or where feasible alternative routes involve uniquely difficult problems. And
the reviewing court must be able to find that the Secretary could have reasonably believed that in
this case there are no feasible alternatives or that alternatives do involve unique problems.
Scrutiny of the facts does not end, however, with the determination that the Secretary has
acted within the scope of his statutory authority. Section 706(2)(A) requires a finding that the
actual choice made was not "arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." To make this finding the court must consider whether the decision was
based on a consideration of the relevant factors and whether there has been a clear error of
judgment. Although this inquiry into the facts is to be searching and careful, the ultimate
standard of review is a narrow one. The court is not empowered to substitute its judgment for
that of the agency.
19
The final inquiry is whether the Secretary's action followed the necessary procedural
requirements. Here the only procedural error alleged is the failure of the Secretary to make
formal findings and state his reason for allowing the highway to be built through the park.
Undoubtedly, review of the Secretary's action is hampered by his failure to make such
findings, but the absence of formal findings does not necessarily require that the case be
remanded to the Secretary. Neither the Department of Transportation Act nor the Federal-Aid
Highway Act requires such formal findings. Moreover, the Administrative Procedure Act
requirements that there be formal findings in certain rulemaking and adjudicatory proceedings do
not apply to the Secretary's action here. See 5 U.S.C. §§ 553(a)(2), 554(a). And, although
formal findings may be required in some cases in the absence of statutory directives when the
nature of the agency action is ambiguous, those situations are rare. Plainly, there is no ambiguity
here; the Secretary has approved the construction of I-40 through Overton Park and has approved
a specific design for the project.
***
[The Court then considered the appropriate remedy for the Secretary's failure to comply
with the APA. It observed that whatever documentation was compiled by the Department of
Transportation, there was no administrative record before the Court.] The lower courts based
their review on the litigation affidavits that were presented. These affidavits were merely "post
hoc" rationalizations, Burlington Truck Lines v. United States, 371 U.S. 156, 168-69 (1962),
which have traditionally been found to be an inadequate basis for review. Burlington Truck
Lines v. United States, supra; SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). And they clearly
do not constitute the "whole record" compiled by the agency: the basis for review required by §
706 of the Administrative Procedure Act.
Thus it is necessary to remand this case to the District Court for plenary review of the
Secretary's decision. That review is to be based on the full administrative record that was before
the Secretary at the time he made his decision. But since the bare record may not disclose the
factors that were considered or the Secretary's construction of the evidence it may be necessary
for the District Court to require some explanation in order to determine if the Secretary acted
within the scope of his authority and if the Secretary's action was justifiable under the applicable
standard.
The court may require the administrative officials who participated in the decision to give
testimony explaining their action. Of course, such inquiry into the mental processes of
administrative decisionmakers is usually to be avoided. United States v. Morgan, 313 U.S. 409,
422 (1941). And where there are administrative findings that were made at the same time as the
decision, as was the case in Morgan, there must be a strong showing of bad faith or improper
behavior before such inquiry may be made. But here there are no such formal findings and it
may be that the only way there can be effective judicial review is by examining the decisionmakers themselves. See Shaughnessy v. Accardi, 349 U.S. 280 (1955).
20
The District Court is not, however, required to make such an inquiry. It may be that the
Secretary can prepare formal findings * * * that will provide an adequate explanation for his
action. Such an explanation will, to some extent, be a "post hoc rationalization" and thus must
be viewed critically. If the District Court decides that additional explanation is necessary, that
court should consider which method will prove the most expeditious so that full review may be
had as soon as possible.
Reversed and remanded.
MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.
Separate opinion of MR. JUSTICE BLACK, with whom MR. JUSTICE BRENNAN joins.
I agree with the Court that the judgment of the Court of Appeals is wrong and that its
action should be reversed. I do not agree that the whole matter should be remanded to the
District Court. I think the case should be sent back to the Secretary of Transportation. It is
apparent from the Court's opinion today that the Secretary of Transportation completely failed to
comply with the duty imposed upon him by Congress * * *. That congressional command
should not be taken lightly by the Secretary or by this Court. It represents a solemn
determination of the highest lawmaking body of this Nation that the beauty and health-giving
facilities of our parks are not to be taken away for public roads without hearings, fact-findings,
and policy determinations under the supervision of a Cabinet officer—the Secretary of
Transportation. The Act of Congress in connection with other federal highway aid legislation, it
seems to me, calls for hearings—hearings that a court can review, hearings that demonstrate
more than mere arbitrary defiance by the Secretary. Whether the findings growing out of such
hearings are labeled "formal" or "informal" appears to me to be no more than an exercise in
semantics. Whatever the hearing requirements might be, the Department of Transportation failed
to meet them in this case. I regret that I am compelled to conclude for myself that, except for
some too-late formulations, apparently coming from the Solicitor General's office, this record
contains not one word to indicate that the Secretary raised even a finger to comply with the
command of Congress. * * * I dissent from the Court's failure to send the case back to the
Secretary, whose duty has not yet been performed.
MR. JUSTICE BLACKMUN.
I fully join the Court in its opinion and in its judgment. I merely wish to state the
obvious: (1) The case comes to this Court as the end product of more than a decade of endeavor
to solve the interstate highway problem at Memphis. (2) The administrative decisions under
attack here are not those of a single Secretary; some were made by the present Secretary's
predecessor and, before him, by the Department of Commerce's Bureau of Public Roads. (3) The
1966 Act and the 1968 Act have cut across former methods and here have imposed new
standards and conditions upon a situation that already was largely developed.
This undoubtedly is why the record is sketchy and less than one would expect if the
project were one which had been instituted after the passage of the 1966 Act.
21