Wendy E. Wagner

Administrative Law, Filter Failure, and Information Capture

There are no provisions in administrative law for regulating the flow of information coming into or leaving the system, or for ensuring that regulatory participants can keep up with a rising tide of issues, details, and technicalities. Indeed, a number of doctrinal refinements, originally intended to ensure that executive branch decisions are made in the sunlight, inadvertently create incentives for participants to overwhelm the administrative system with complex information, causing much of the decisionmaking processes to remain, for all practical purposes, in the dark. As these agency decisions become increasingly obscure to all but the most well-informed insiders, administrative accountability is undermined as entire sectors of affected parties find they can no longer afford to participate in this expensive system. Pluralistic oversight, productive judicial review, and opportunities for intelligent agency decisionmaking are all put under significant strain in a system that refuses to manage - and indeed tends to encourage - excessive information. This Article first discusses how parties can capture the regulatory process using information that allows them to control or at least dominate regulatory outcomes (the information capture phenomenon). It then traces the problem back to a series of failures by Congress and the courts to require some filtering of the information flowing through the system (filter failure). Rather than filtering information, the incentives tilt in the opposite direction and encourage participants to err on the side of providing too much rather than too little information. Evidence is then offered to show how this uncontrolled and excessive information is taking a toll on the basic objectives of administrative governance. The Article closes with a series of unconventional but relatively straightforward reforms that offer some hope of bringing information capture under control.

The Precautionary Principle and Chemical Regulation in the U.S.

Although the statutory goals for chemical regulation are consistent with the precau tionary principle, the current U.S. regulatory program governing synthetic chemicals generally adopts little precautionary controls for the manufacture of most chemicals. For the vast majority of chemicals in use, current law places the burden of producing scientific evidence on the regulatory agency, which actually may serve to discourage companies from testing the safety of their chemicals, since the results could then be used against them in regulatory proceedings. By contrast, for a small subset of chemicals — new chemicals that belong to suspect categories — regulatory controls are quite precautionary. The result of this schizophrenic approach to chemical regulation is a regulatory system that is characterized by the absence of preventative regulation for most existing chemicals, an inequitable barrier to entry for newer safer chemicals, and a lack of information upon which to understand the safety of most chemicals in the U.S. Informal reforms of the current regulatory program are already underway to provide a more consistent and precautionary approach to chemical regulation, although to fully advance the dual goals of regulatory consistency and precaution in the regulation of chemicals, legislative action is necessary.

Misunderstanding Models in Environmental and Public Health Regulation

Computational models are fundamental to environmental regulation, yet their capabilities tend to be misunderstood by policymakers. Rather than rely on models to illuminate dynamic and uncertain relationships in natural settings, policymakers too often use models as “answer machines.” This fundamental misperception that models can generate decisive facts leads to a perverse negative feedback loop that begins with policymaking itself and radiates into the science of modeling and into regulatory deliberations where participants can exploit the misunderstanding in strategic ways. This paper documents the pervasive misperception of models as truth machines in U.S. regulation and the multi-layered problems that result from this misunderstanding. The paper concludes with a series of proposals for making better use of models in environmental policy analysis.

Revisiting the Impact of Judicial Review on Agency Rulemakings: An Empirical Investigation

It is generally believed that the judicial review of agency rulemakings helps protect the public interest against industry capture. Yet very little empirical research has been done to assess the accuracy of this conventional wisdom. This study examines the entire set of air toxic emission regulations promulgated by the Environmental Protection Agency (EPA), with particular attention to those rules appealed to judgment in the court of appeals, and discovers significant disconnects between popular understanding of judicial review and rule-making reality. Of these air toxic rules (N=90), the courts were summoned to review only a small fraction (8%), despite evidence that many air toxic rules may have problems, at least from the public interest perspective. Moreover, although virtually all of the litigation brought by public interest groups against the EPA’s air toxic rules was successful, the resulting victories have not yet had much impact in practice. For most of its vacated regulations, the EPA has either ignored or limited the courts’ opinions and has not re-promulgated revised rules. Thus, while the tenor of the opinions seems to re-affirm the courts’ role as guardian of the public interest, the actual impact of these opinions on agency practice may be less influential than one might expect. A concluding section takes the analysis one step further and explores the possibility that the net effect of judicial review may actually be more perverse. The ability of the dominant parties (which in the case of EPA’s air toxic rules is regulated industry) to threaten the agency with expensive and time-consuming litigation could provide these groups with legal leverage that, in the aggregate serves to further undermine the agency’s ability to act on behalf of the public interest.

FREEDOM AND INDEPENDENCE

to pursue the most interesting and relevant questions about nature and humanity have been the essence of the Institute for Advanced Study for more than eighty years. The Institute exists to provide an optimal environment where scholars from all over the world can think and share, imagine and risk, and begin again without conditions and limitations. The Institutes School of Historical Studies, established in 1949 with the merging of the School of Economics and Politics and the School of Humanistic Studies, expanded its scope to include Islamic and Near Eastern studies with the appointment of the late in the field of Islamic History. Both appointments focused on the premodern period, recognizing the overall historiographical importance of the cultural, religious, and intellectual history of Islam and the Near East. Over two decades, Grabar drew both emerging and established scholars to the Institute, where, both before and after he became Professor Emeritus in 1998, Grabar continued to cultivate and advance fundamental research in a field in which he posited questions that challenged Western perspectives. Crone has focused her research on the political, religious, and cultural environment in which Islam began and how it transformed, and was itself transformed by, the regions that the Arabs conquered. With Oleg Grabar and Patricia Crone, the Institute has become, over a period of almost a quarter century, a recognized center for the pursuit of the study of Islamic culture and history. In finding a successor for Crone, who retired in July 2014, the School considered the most innovative and creative areas within the vast field of Near Eastern Studies, covering over two millennia and every aspect of humanistic knowledge from art to literature, and to political, cultural, social, and economic history. The intellectual history of classical and postclassical Islam is an area that, because of renewed philological and textual activity made possible by an increased accessibility of manuscript libraries and collections, represents a primary challenge and a critical frontier in the future development of Islamic studies. This particular field holds the greatest promise of long-term investment in fundamental research that will contribute to the transformation of future knowledge on the evolution of intellectual traditions not just in relation to Islam, but also Judaism and Eastern Christianity to the extent that mutual influences can be revealed. Given these considerations, SabineSchmidtke, previously Professor of Islamic Studies and founding Director of the Research Unit Intellectual History of the Islamicate …

Regulatory reinforcement of journal conflict of interest disclosures

A variety of economic and ideological forces threaten the integrity of public health research.1–4 In response, the editors of the top biomedical journals now require conflict of interest disclosures for submissions. Their increasingly extensive disclosure policies have resulted in some progress towards protecting the integrity of public health research by disclosing for readers potential sources of author bias.5 6 Yet the journal editors appear to be reaching the limits of what they can realistically accomplish. Letters to the editor reporting undisclosed conflicts,7 editorial retractions of non-compliant articles8 and occasional news scandals9 10 are still far too common. Several empirical studies have also confirmed problematic levels of author non-compliance with journal disclosure policies.11 12 And journal editors themselves seem frustrated by the scope of the conflicts problem and their limitations in addressing it. As Catherine DeAngelis, editor-in-chief of JAMA , explained: “I’m not the F.B.I.” and cannot look “in the hearts, minds and souls of authors”, much less oversee the completeness of the disclosures accompanying the over 6000 articles submitted annually to her journal.13 Moreover, as Dr DeAngelis notes, even if JAMA could miraculously identify all …

Rethinking Judicial Review of Expert Agencies

The role of generalist courts in reviewing the work of expert agencies is generally portrayed as either an institutional necessity on the one hand or a Pandora’s Box on the other. Courts are expected to ensure the accountability of agency actions through their legal oversight role, yet on matters of science policy they do not have the expertise of the agencies nor can they allow themselves to become amateur policymakers in the course of their review. Given these challenges, we set out to better understand what courts are doing in their review of agency science. We conducted a qualitative examination of the courts’ review of challenges to agency scientific choices in the entire set of the Environmental Protection Agency’s (EPA’s) National Ambient Air Quality Standards (NAAQS). Our study revealed an increasingly rigorous and substantive engagement in the courts’ review of scientific challenges to the EPA’s NAAQS over time that tracked the Agency’s own progress in developing rigorous analytical approaches. Our findings, albeit preliminary, suggest the emergence of a constructive partnership between the courts and agencies in science policy in NAAQS cases. In overseeing scientific challenges, the courts appear to serve as a necessary irritant, encouraging the agency to develop much stronger administrative governance and deliberative decisions on complex science-policy issues. Conversely, in developing stronger decision-making processes, the resulting agency efforts have a reciprocal, positive impact on the courts’ own standards for review. The courts and agencies thus appear to work symbiotically through their mutual efforts on the establishment of rigorous analytical yardsticks to guide the decision process. While our findings may be limited to the NAAQS, which likely present a best case in administrative process, the findings may still offer a grounded, normative model for imagining a constructive and even vital role for generalist courts in technically complex areas of social decision making.

A Place for Agency Expertise: Reconciling Agency Expertise with Presidential Power

This Essay uses Peter Strauss’s work as a springboard to explore the particularly precarious position of the agencies charged with promulgating science-intensive rules (“expert agencies”) with respect to presidential oversight. Over the last three decades, agencies promulgating science-intensive rules have worked to enhance the accountability and scientific credibility of their rules by developing elaborate procedures for ensuring both vigorous scientific input and public oversight. They have accomplished this by deploying multiple rounds of public comment on their science-policy choices, soliciting rigorous scientific peer review, inviting dissent, and explaining methods and choices. Yet, at the same time that these expert agencies work to establish more rigorous decision processes grounded in both science and public review, the White House, primarily through its Office of Information and Regulatory Affairs (OIRA), appears to be undermining the agencies’ efforts through its largely nontransparent oversight process. In a number of rule settings, OIRA suggests dozens of intricate changes outside of the agencies’ rigorous deliberative processes that, while presumably intended to advance larger policy preferences, also involve changes to the agencies’ supporting, technical explanations. Even more problematic, most and sometimes all of these changes are made invisibly, often without leaving fingerprints and almost always without providing any supporting explanation or evidence.While in theory the expert agency and White House review should make a mutually-beneficial team - each bringing important, but differing perspectives to bear on science-intensive rules - in practice the White House’s secretive interventions threaten to undermine the legitimacy of both institutional processes simultaneously. The end result is both a weakened expert agency model and a more institutionally tenuous presidential review. The Essay concludes with a proposal for reformed institutional design.

The Enlightenment of Administrative Law: Looking inside the Agency for Legitimacy

The discourse over the legitimacy of unelected administration has produced two paradigms. Administrative law scholarship has focused almost exclusively on a rational-instrumental paradigm that seeks to legitimate from the outside in, relying on political oversight, judicial review, and scientific and social methodologies to squeeze the discretion out of public administration. By comparison, public administration scholarship has focused on a deliberative-constitutive paradigm that seeks to legitimate from the inside out, relying on administrative expertise, deliberation, and reason giving to ensure reasonable decision-making. This paradigm accepts administrative discretion both as unavoidable and as necessary. Besides failing at its own goal of eliminating discretion, the rational-instrumental paradigm has produced rulemaking ossification, bureaucracy bashing, a misunderstanding of the role of science in administration, and a failure to build a comprehensive theory of administrative accountability, one which takes into account both paradigms. Despite these defects, contemporary administrative law scholarship and practice is so deeply enmeshed in rational-instrumental accountability that it is difficult for administrative lawyers to imagine that there is a complementary approach to legitimacy. Yet, the history of administrative law in this and other jurisdictions highlights the significance of the deliberative-constitutive paradigm. In light of the demise of interest group pluralism in rulemaking, and the scholarly dead end in which we find ourselves, it is time to recognize and develop the deliberative-instrumental paradigm.

The Science and the Law of Toxics

63 Thomas Sinks A discussion about public health science requires an understanding of the distinction between science and advocacy. Three frameworks for evaluating scientific information and public health programs include causal inference, the public health approach, and risk assessment. This discussion will also include a brief overview of the issue of mercury and public health, to put these issues in perspective. What is and is not science? Science is an effort to prove things false. Science puts evidence to a test and gives it an opportunity to be proven incorrect. Astronomy is a science that puts out theories. Scientists take those theories and create hypotheses, and those hypotheses have to be able to be proven false to be a scientific hypothesis. Pseudo-science is inductive; evidence is added to other evidence, but is never proven false. Astrology never really tests itself, giving vague predictions that 90% of the time come true because they are so vague. Advocacy is unlike science. Advocates drive science by setting very specific goals and taking sides. Completion is the goal, and failure to get something accomplished is never success. Science always tests itself, and always refines or reexamines its answers and it never finishes. It creates novel questions. Failure can be success because failure to prove something is progress. But a problem occurs when a scientist becomes an advocate. Scientists should not be taking sides, because a scientist who is an advocate is biased. A scientific advocate often presents only one side of an argument, but frequently fails to look at the other side, ignoring evidence that makes their position untrue. Causal Inference How does one look at a body of science and determine its value or determine causation? Austin Bradford Hill detailed the basic tenets for assessing the weight of scientific evidence for determining a cause-and-effect relationship between two things. The first is the strength of association: how weak is it? If it is weak, it is probably not so important. However, strength of association is neither necessary nor sufficient to be a cause because this phenomenon has as much to do with what the background rates of disease are and the additional amount of disease that is being caused by another factor. Strength of association may also vary from one population to another. Next is consistency. In five studies done in different populations and using different methods, is the same effect being seen over and over again? Temporality states that the cause has to pre-exist before the effect. Preventability asks, if a risk factor is taken away, is there a difference in the disease presentation? Dose-response is an important issue in environmental health. Researchers expect that disease rate should change as the amount of exposure changes. If an exposure prevents disease, the rate of disease will decrease as the amount of exposure increases. If there is no relationship like that, arguments in favor of a cause-and-effect relationship are less compelling. Specificity is the last tenet, of which cancer is an apt example. Not many causes of cancer cause all cancers. Researchers expect most causes of cancers to be relatively specific to a type of cancer. Cigarette smoking is an exception to this rule, because cigarette smoke is made up of hundreds of different chemicals. But when specific chemicals are considered, like benzene, researchers expect an increase in leukemia, not all types of cancer. The Science and the Law of Toxics