Judicial Deference to Federal Agency
Actions: In Theory & Practice
Perrin W. de Jong, Esq.
May 2017
Defining the Legal Limits of Deference: the
Administrative Procedure Act’s “arbitrary and
capricious” standard
 The reviewing court shall hold unlawful and set
aside agency action, findings, and conclusions
found to be:
• arbitrary, capricious,
• an abuse of discretion, or
• otherwise not in accordance with law.
-- 5 U.S.C.§706 (2)(A).
Chevron Deference: agency interpretation of
Congressional rulemaking mandates
Chevron v. NRDC, 467 U.S. 837 (1984):
 1st Question: Did Congress unambiguously express its
intent for what it wanted the agency to do?
A) YES → court should enforce Congress’ explicit I
intent. Id. at 842-43.
B) NO → Congress left a gap in meaning for the
agency to fill in, and it’s about to get complicated . .
.
Chevron Deference: When Congress Left a Gap in
Meaning for the Agency to Fill In, Part 1
If Congress explicitly left a gap for the agency to fill:
this is an express delegation of authority to the agency
to define the issue by publishing new regulations.
→ “such legislative regulations are given controlling
weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.” Chevron, 467 U.S.
at 843-44.
Back to Home Base and the Legal Limits of
Deference: the Administrative Procedure Act’s
“arbitrary and capricious” standard
 The reviewing court shall hold unlawful and set aside
agency action, findings, and conclusions found to be:
•arbitrary, capricious;
•an abuse of discretion;
or
•otherwise not in
accordance with law.
-- 5 U.S.C.§706 (2)(A).
Chevron Deference: When Congress Left a Gap in
Meaning for the Agency to Fill In, Part 2
If Congress implicitly left a gap for the agency to fill:
→The court may not substitute its own
interpretation of the statute for that of a
reasonable interpretation made by the agency.
♣ This is especially true when the agency is
“reconciling conflicting policies.”
-- Chevron, 467 U.S. at 844-45.
Where Forest Watchers Usually Encounter
Deference: Project-Level Decisions and the Highly
Deferential “Arbitrary & Capricious” Standard
 Review under this standard is highly deferential, with a
presumption in favor of finding the agency action valid
...
 Especially in matters involving not just simple findings of
fact but complex predictions based on special
expertise, "a reviewing court must generally be at its
most deferential.“
-- Ohio Valley Envtl. Coalition v. Aracoma Coal Co.,
556 F.3d 177,192 (4th Cir. 2009)
Not so Fast: This inquiry is “Searching and
Careful”
The reviewing court is required to undertake a “searching
and careful” inquiry into the agency’s actions to
determine “whether:
• the decision was based on a consideration of the
relevant factors; and
• whether there has been a clear error of judgment.”
-- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,
416 (1971).
Judge, Burn Thy Rubber Stamp: It Hath no Place
Here
The "arbitrary and capricious" standard is not meant to
reduce judicial review to a "rubber-stamp" of agency
action. While the standard of review is narrow, the court
must nonetheless engage in a "searching and careful"
inquiry of the record. But, this scrutiny of the record is
meant primarily "to educate the court" so that it can
"understand enough about the problem confronting the
agency to comprehend the meaning of the evidence
relied upon and the evidence discarded; the questions
addressed by the agency and those bypassed; the
choices open to the agency and those made."
-- OVEC v. Aracoma, 556 F.3d 177,192-93 (4th Cir. 2009)
What is the Court Looking For in this Searching &
Careful Inquiry? Arbitrary & Capricious gets
Specific, Part 1
[T]he agency must examine the relevant data and
articulate a satisfactory explanation for its action
including a "rational connection between the facts
found and the choice made.“
-- Motor Vehicle Mfrs. v. State Farm, 463 U.S. 29, 43 (1983).
What is the Court Looking For in this Searching &
Careful Inquiry? Arbitrary & Capricious gets
Specific, Part 2
Normally, an 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.
-- Motor Vehicle Mfrs. v. State Farm, 463 U.S. 29, 43 (1983).
Stop Helping! No Pity-Assistance Allowed
“The reviewing court should not attempt itself to
make up for such deficiencies; we may not
supply a reasoned basis for the agency's action
that the agency itself has not given.”
-- Motor Vehicle Mfrs. v. State Farm,
463 U.S. 29, 43 (1983).
Practice Pointers: Educating
Judges on the Proper Standard
Do It.
A Practical Example of Misapplied Deference:
McGuinness et. al v. U.S. Forest Service
THE RELEVANT LEGAL STANDARD UNDER NEPA:
“If any ‘significant’ environmental impacts might result
from the proposed agency action then an EIS must be
prepared before the action is taken.”
-- Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983)
“An agency’s refusal to prepare an environmental
impact statement is arbitrary and capricious if its action
might have a significant environmental impact.”
-- N.C. v. FAA, 957 F.2d 1125, 1131 (4th Cir. 1992)
A Practical Example of Misapplied Deference:
McGuinness et. al v. U.S. Forest Service
What the Court Admitted Based on the Facts in the Record:
“Among hikers, the infrequent periods of heavy use could
have had potentially bothersome effects.” -- Memo Op. at 9
(citing A.R. 660).
What the Record/Facts Said:
• Chunky Gal Trail hikers and horseback riders would hear
gunfire “almost as loud as shouting” for an estimated 2
to 3 miles along the trail. -- AR 76, AR 80.
• “The Chunky Gal trail will experience clearly
noticeable, possibly bothersome gunfire noise” from
the Perry Creek site. -- AR 146.
A Practical Example of Misapplied Deference:
McGuinness et. al v. U.S. Forest Service
What Did the Forest Service Conclude Based on These
Facts?
After considering the environmental effects described in
the EA, I have determined that these actions will not
have a significant effect on the quality of the human
environment considering the context and intensity of
impacts (40 CFR 1508.27). Thus, an environmental impact
statement will not be prepared.
-- Finding of No Significant Impact, AR 4.
A Practical Example of Misapplied Deference:
McGuinness et. al v. U.S. Forest Service
How did the court feel about this?
The court defers to the agency’s expertise on these
specific, scientific matters as the agency and not the
court is better positioned to make such a determination
of environmental impact. . . Further sound studies
involving a portion of a National Forest trail revealed
some impact above normal conversation, however, the
Forest Service determined such impact was minimal
when the entirety of the public trail system was
considered in Clay County.
-- Memo Op. at 7.
Invisible Deference for Serial Litigators
We Need to
Talk About
Your Habit . . .
Credentials
Perrin W. de Jong, Esq.
[email protected]
(828)252-4646
• J.D., Lewis & Clark
Law School, 2009.
• Licensed in North
Carolina
• Criminal &
Environmental Law