Risk, expertise and judicial review : scope of review and decision making under scientific uncertainty

Judicial review of risk regulation rule making in the United States has been a highly controversial area of administrative law. How a court should substantively review expert decision makers acting under scientific uncertainty is by no means clear. While there has been much criticism, few answers have been forthcoming, and the present approach taken by the courts has led to ossification of the rule making process. While risk regulation may seem the product of late twentieth century America, courts in carrying out judicial review have been tackling the problems created by expertise and scientific uncertainty since at least the turn of the century. The courts' approach in applying such scope of review standards as the substantial evidence and arbitrary and capricious tests has been largely determined by their understanding of what is an expert administrative agency. Two models of administrative expertise can be identified - the deliberative and the rationalist. The rationalist expert agency is defined as an analytical fact finder which does not stray outside precise legislative boundaries. In contrast the deliberative expert agency is a complex problem solver in the public interest. It engages in deliberation informed by analysis to solve problems identified by Congress. Through an examination of the impact of these models on scope of review doctrine an appreciation can be gained of why judicial review is presently carried out the way it is and how it can be reformed. In the early half of this century, scope of review doctrine was underpinned by the deliberative model. With the creation of the risk regulatory agencies in the early 1970s there was much confusion over both the role of these new agencies and how the courts should review their decisions. Due to a number of circumstances, both internal and external to risk regulation, judicial review was by 1980 underpinned by the rationalist paradigm. Influential factors included: growing distrust of public administration, hard look review, debates about administrative procedure, and legislative ambiguity. It is argued that the rationalist model is at odds with the task of risk regulators and what is expected of them. It is the rationalist paradigm rather than judicial review per se which has led to the problems of ossification. The deliberative paradigm can and should be the basis for effective judicial review and this is illustrated with a mock judgement.