Retiring ‘No Look’ Judicial Review in Agency Cases Involving Science

Abstract

The Supreme Court's casual statement in Baltimore Gas and Electric Co. v. NRDC, 462 U.S. 87 (1983) that reviewing courts should be "most deferential" to agency predictions "on the frontiers of science" has spawned a liner of cases in the lower courts that rubber stamp agency decisions with what amounts to "no look" judicial review. This development is criticized on a number of legal and policy grounds. It is suggested that the increasing reliance on algorithms and other forms artificial intelligence makes it particularly important for the Supreme Court to clarify the proper standard of review in agency cases involving science.