Posted by Tim Dowling
Happy New Year to all! We're starting off where we left off, with the still-simmering fallout from EPA's unfortunate rejection of the California waiver late last year.
In a fascinating new article entitled Mass. v. EPA: From Politics to Expertise, Harvard Law School professors Jody Freeman and Adrian Vermeule offer an interpretation of Mass. v. EPA that has direct implications for California’s legal challenge to EPA’s waiver denial.
Freeman and Vermeule argue that Mass. v. EPA reflects ”the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration.” They view the ruling as “a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies.” And they show that while the seminal decision in Chevron USA Inc. v. Natural Resources Defense Council sees "presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic.”
Because EPA’s waiver denial reportedly contravened the unanimous recommendation of the Agency’s technical and legal staff, the Freeman-Vermeule thesis provides yet another reason why EPA is "likely to lose" in California's legal challenge.
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