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Hard look review

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What is a standard of review?

A standard of review is the level of deference that a federal court affords to a lower court ruling or an agency determination when reviewing a case on appeal. Courts reviewing an administrative action will consider whether the agency’s action was arbitrary or capricious, an abuse of discretion, or contrary to law. In applying a standard a review, the reviewing court may either uphold, alter, or overturn the action under review. Learn about standards of review here.

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Hard look review is an application of the arbitrary-or-capricious test, which is a legal standard of review used by judges to assess the actions of administrative agencies. A provision of the 1946 Administrative Procedure Act (APA) instructs courts reviewing agency actions to invalidate any that they find to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The test is most frequently employed to assess the factual basis of an agency's rulemaking, especially informal rulemakings.[1][2][3][4]

Background

The Administrative Procedure Act (APA) is a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations, a process known as rulemaking. Under the APA, final agency decisions (such as those made during rulemaking or adjudication) are subject to judicial review, usually with a six-year statute of limitations. The APA provides for judicial review for persons and parties "adversely affected or aggrieved by agency action within the meaning of a relevant statute" or suffering "legal wrong because of agency action."[1][2][3]

The APA establishes two standards of review for courts assessing the actions of administrative agencies: arbitrary-or-capricious and substantial evidence. The arbitrary-or-capricious test, while applicable to all agency decisions, is most frequently used to review the factual basis of informal rulemakings.[1][4][2]

Hard look review is an application of the arbitrary-or-capricious test. Chevron deference step two established that courts should defer to reasonable interpretations of statutes by agencies and hard look review seeks to determine what makes an interpretation reasonable. Using this standard, courts reviewing agency actions make sure agencies take account of all relevant facts as part of its decision-making process.[5][6]

Hard look review solidified following the Supreme Court's decision in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company, a 1983 case that involved a Reagan-era National Highway Traffic Safety Administration (NHTSA) decision to rescind Carter-era seat belt requirements for new cars. The Supreme Court ruled that the agency acted in an arbitrary and capricious manner because it failed to explain why it removed the regulation in an adequate way. While Vermont Yankee forbids courts from adding procedures to agency decision-making beyond what the APA requires, courts use the State Farm hard look review to require detailed explanations for agency behavior.[7][5]

According to one estimate from 2009, the following language from State Farm describing how the Court applies hard look review had been cited 536 times with the case itself cited in 3053 decisions:[5]

“ [A]n 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.[7][8] ”

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Footnotes

  1. ↑ 1.0 1.1 1.2 The Regulatory Group, "Regulatory Glossary," accessed August 4, 2017
  2. ↑ 2.0 2.1 2.2 Electronic Privacy Information Center, "The Administrative Procedure Act (APA)," accessed August 14, 2017
  3. ↑ 3.0 3.1 Environmental Protection Agency, "Summary of the Administrative Procedure Act," accessed August 14, 2017
  4. ↑ 4.0 4.1 Center for Effective Government, "Arbitrary-or-Capricious Test," accessed August 15, 2017
  5. ↑ 5.0 5.1 5.2 Harvard Law Review, "Rationalizing Hard Look Review After the Fact," 2009
  6. ↑ Findlaw, Chevron U.S.A. v. Natural Res. Def. Council, accessed August 9, 2018
  7. ↑ 7.0 7.1 Oyez, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company, accessed August 9, 2018
  8. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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