Revisiting the Impact of Judicial Review on Agency Rulemakings: An Empirical Investigation

It is generally believed that the judicial review of agency rulemakings helps protect the public interest against industry capture. Yet very little empirical research has been done to assess the accuracy of this conventional wisdom. This study examines the entire set of air toxic emission regulations promulgated by the Environmental Protection Agency (EPA), with particular attention to those rules appealed to judgment in the court of appeals, and discovers significant disconnects between popular understanding of judicial review and rule-making reality. Of these air toxic rules (N=90), the courts were summoned to review only a small fraction (8%), despite evidence that many air toxic rules may have problems, at least from the public interest perspective. Moreover, although virtually all of the litigation brought by public interest groups against the EPA’s air toxic rules was successful, the resulting victories have not yet had much impact in practice. For most of its vacated regulations, the EPA has either ignored or limited the courts’ opinions and has not re-promulgated revised rules. Thus, while the tenor of the opinions seems to re-affirm the courts’ role as guardian of the public interest, the actual impact of these opinions on agency practice may be less influential than one might expect. A concluding section takes the analysis one step further and explores the possibility that the net effect of judicial review may actually be more perverse. The ability of the dominant parties (which in the case of EPA’s air toxic rules is regulated industry) to threaten the agency with expensive and time-consuming litigation could provide these groups with legal leverage that, in the aggregate serves to further undermine the agency’s ability to act on behalf of the public interest.