1. Judicial Deference to Federal Agency Actions: In Theory & Practice
Judicial Deference to Federal Agency Actions: In Theory & Practice Perrin W. de Jong, Esq May 2017

2. Defining the Legal Limits of Deference: the Administrative Procedure Act’s “arbitrary and capricious” standard
The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be:
arbitrary, capricious,
an abuse of discretion, or
otherwise not in accordance with law U.S.C.§706 (2)(A).

3. Chevron Deference: agency interpretation of Congressional rulemaking mandates
Chevron v. NRDC, 467 U.S. 837 (1984):
1st Question: Did Congress unambiguously express its intent for what it wanted the agency to do?
A) YES → court should enforce Congress’ explicit I intent. Id. at
B) NO → Congress left a gap in meaning for the agency to fill in, and it’s about to get complicated

4. Chevron Deference: When Congress Left a Gap in Meaning for the Agency to Fill In, Part 1
If Congress explicitly left a gap for the agency to fill: this is an express delegation of authority to the agency to define the issue by publishing new regulations.
→ “such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at

5. Back to Home Base and the Legal Limits of Deference: the Administrative Procedure Act’s “arbitrary and capricious” standard
The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be:
arbitrary, capricious;
an abuse of discretion; or
otherwise not in
accordance with law U.S.C.§706 (2)(A).

6. Chevron Deference: When Congress Left a Gap in Meaning for the Agency to Fill In, Part 2
If Congress implicitly left a gap for the agency to fill:
→The court may not substitute its own interpretation of the statute for that of a
reasonable interpretation made by the agency.
♣ This is especially true when the agency is “reconciling conflicting policies.”
-- Chevron, 467 U.S. at

7. Where Forest Watchers Usually Encounter Deference: Project-Level Decisions and the Highly Deferential “Arbitrary & Capricious” Standard
Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid . . .
Especially in matters involving not just simple findings of fact but complex predictions based on special expertise, "a reviewing court must generally be at its most deferential.“
-- Ohio Valley Envtl. Coalition v. Aracoma Coal Co., F.3d 177,192 (4th Cir. 2009)

8. Not so Fast: This inquiry is “Searching and Careful”
The reviewing court is required to undertake a “searching and careful” inquiry into the agency’s actions to determine “whether:
the decision was based on a consideration of the relevant factors; and
whether there has been a clear error of judgment.”
-- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).

9. Judge, Burn Thy Rubber Stamp: It Hath no Place Here
The "arbitrary and capricious" standard is not meant to reduce judicial review to a "rubber-stamp" of agency action. While the standard of review is narrow, the court must nonetheless engage in a "searching and careful" inquiry of the record. But, this scrutiny of the record is meant primarily "to educate the court" so that it can "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."
-- OVEC v. Aracoma, 556 F.3d 177, (4th Cir. 2009)

10. What is the Court Looking For in this Searching & Careful Inquiry
What is the Court Looking For in this Searching & Careful Inquiry? Arbitrary & Capricious gets Specific, Part 1
[T]he 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.“
-- Motor Vehicle Mfrs. v. State Farm, 463 U.S. 29, 43 (1983).

11. Normally, an agency rule would be arbitrary and capricious if:
What is the Court Looking For in this Searching & Careful Inquiry? Arbitrary & Capricious gets Specific, Part 2
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.
-- Motor Vehicle Mfrs. v. State Farm, 463 U.S. 29, 43 (1983).

12. Stop Helping! No Pity-Assistance Allowed
“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.”
-- Motor Vehicle Mfrs. v. State Farm,
463 U.S. 29, 43 (1983).

13. Practice Pointers: Educating Judges on the Proper Standard
Do It.

14. THE RELEVANT LEGAL STANDARD UNDER NEPA:
A Practical Example of Misapplied Deference: McGuinness et. al v. U.S. Forest Service
THE RELEVANT LEGAL STANDARD UNDER NEPA:
“If any ‘significant’ environmental impacts might result from the proposed agency action then an EIS must be prepared before the action is taken.”
-- Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983)
“An agency’s refusal to prepare an environmental impact statement is arbitrary and capricious if its action might have a significant environmental impact.”
-- N.C. v. FAA, 957 F.2d 1125, 1131 (4th Cir. 1992)

15. A Practical Example of Misapplied Deference: McGuinness et. al v. U. S
A Practical Example of Misapplied Deference: McGuinness et. al v. U.S. Forest Service
What the Court Admitted Based on the Facts in the Record:
“Among hikers, the infrequent periods of heavy use could have had potentially bothersome effects.” -- Memo Op. at 9 (citing A.R. 660).
What the Record/Facts Said:
Chunky Gal Trail hikers and horseback riders would hear gunfire “almost as loud as shouting” for an estimated 2 to 3 miles along the trail. -- AR 76, AR 80.
“The Chunky Gal trail will experience clearly noticeable, possibly bothersome gunfire noise” from the Perry Creek site. -- AR 146.

16. What Did the Forest Service Conclude Based on These Facts?
A Practical Example of Misapplied Deference: McGuinness et. al v. U.S. Forest Service
What Did the Forest Service Conclude Based on These Facts?
After considering the environmental effects described in the EA, I have determined that these actions will not have a significant effect on the quality of the human environment considering the context and intensity of impacts (40 CFR ). Thus, an environmental impact statement will not be prepared.
-- Finding of No Significant Impact, AR 4.

17. How did the court feel about this?
A Practical Example of Misapplied Deference: McGuinness et. al v. U.S. Forest Service
How did the court feel about this?
The court defers to the agency’s expertise on these specific, scientific matters as the agency and not the court is better positioned to make such a determination of environmental impact. . . Further sound studies involving a portion of a National Forest trail revealed some impact above normal conversation, however, the Forest Service determined such impact was minimal when the entirety of the public trail system was considered in Clay County Memo Op. at 7.

18. Invisible Deference for Serial Litigators
We Need to Talk About Your Habit . . .

19. Credentials Perrin W. de Jong, Esq. (828)252-4646
(828)
J.D., Lewis & Clark Law School, 2009.
Licensed in North Carolina
Criminal & Environmental Law