Massachusetts v. EPA: A Change of Climate at EPA Clouds the D.C. Circuit's Review of Risk-Based Policy Decisions

Smith, Joel D.
August 2006
Ecology Law Quarterly;2006, Vol. 33 Issue 3, p653
Academic Journal
It is well established that the Administrator of the Environmental Protection Agency has broad policy-making discretion when responding to uncertain environmental risks. Yet there are important limitations to that principle. An agency can exercise policy judgments only to the extent that Congress delegates such power, and only where doing so furthers the regulatory process. A useful analytical tool for evaluating whether agency policy-based decisions meet this test is the risk assessment/risk management framework. Risk assessment and risk management represent two phases of the regulatory process, each entailing a different set of relevant policy considerations. Where an agency bases its decisions on considerations relevant to the wrong phase it may thwart the regulatory scheme developed by Congress as well as exceed the scope of its delegated authority. A 2005 climate change litigation case, Massachusetts v. EPA, provides a case in point, illustrating, the importance of the risk assessment/risk management framework to judicial review of agency policy-making. There, the court held that the Administrator may look to both science and general policy concerns when judging whether a pollutant poses a threat to public health and welfare. Interpreting the provision of the Clean Air Act at issue in that case in view of the risk assessment/risk management framework, this Note argues that the court misconstrued the range of policy factors the Administrator may cite as a basis for such a finding.


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