Posted on March 15, 2021 by Michael Wall
One salutary feature of administrative law—the core practice of many environmental litigators—is its predominant neutrality. There is nothing partisan about the principles that an agency must draw a “rational connection between the facts found and the choice made” when issuing regulations; must base important decisions on “genuine” not “contrived” rationales; and must not ignore “important aspect[s] of the problem[s]” that they claim to be addressing. These principles are not ideological either, except in their adherence to the values of reasoned governmental decision making and fair judicial review that the Administrative Procedure Act codified.
Among the APA’s most fundamental principles is the requirement that judicial review occurs on the “whole record” of agency decision making. The justification for this requirement is clear: “Judicial review on less than the full administrative record might allow a party to withhold evidence unfavorable to its case.” Judicial review on an agency-curated record would quickly render judicial review meaningless.
But as with much of administrative law, the last four years tested this principle. Throughout the last Administration, the Department of Justice aggressively argued that, because pre-decisional and deliberative documents were privileged, those documents were not part of the administrative record—and thus need not even be identified on a privilege log. This circular theory had the potential to kneecap judicial review, and to make the Department both defense counsel and judge of its clients’ claims of privilege.
While the Supreme Court has not directly ruled on this theory, it is in some tension with the Court’s foundational administrative law jurisprudence. The Department’s argument was also puzzling from a textualist perspective, as Congress expressly required “whole record” judicial review—and last I checked, “whole” still meant “whole.” And an originalist might tie herself in knots trying to explain how Congress could have intended a silent, deliberative-process exception to whole-record judicial review, given that the qualified, judicially invented deliberative process privilege was first conjured into existence well after the APA’s enactment.
So it did not surprise me to watch one court after another roundly reject the Department’s approach these past four years. Notably, many of these decisions were handed down in legal challenges to Trump Administration environmental policies, including—illustratively—high-profile challenges to the Trump Administration’s approval of the Keystone XL pipeline, its permitting of seismic surveys in the coastal waters of the mid- and south-Atlantic Ocean, and its roll back of oil drilling safety standards.
But to circle back to my opening point, the principle articulated in these judicial opinions is neutral. I cannot imagine that the Biden Administration will crave judicial scrutiny, but it must surely expect it. And environmental advocates—myself among them—must now live with the principle we have established. So be it. Our constitutional democracy needs transparent government decision making on a record that the public and a court—any court–can independently review and evaluate. That is true whether we agree with the challenged agency decision, or we do not.