Professor Aaron Nielson on the Dangers of a Post-Chevron “Science Charade”

Professor Aaron Nielson has published some fascinating commentary over at Civitas Outlook in which he explores the dangers of agencies misusing science—or what they claim to be science—to avoid the impacts of Loper Bright and the end of Chevron deference.

The thesis is simple enough:

[B]ecause judges often defer to agencies on questions of science, “the courts offer agencies strong and virtually inescapable incentives to conceal policy choices under the cover of scientific judgments and citations.”  Rather than justifying the agency’s policy choice as a policy choice, agencies instead may dress-up their decisions as compelled by science.

Professor Nielson acknowledges there may be “limits to the science charade.”  Hard-look review under APA Section 706’s arbitrary-and-capricious standard, while deferential, may still prevent the most egregious instances of agency overreach based on ostensible “science” or technical expertise.  That seems most likely, in my mind, when scientific facts may come into conflict with competing considerations like economic costs—consider, here, the relevance of Michigan v. EPA—or regulatory impacts on the human environment.  The Magnuson-Stevens Act (“MSA”), which governs domestic fisheries and is the statute at issue in Loper Bright, offers a good example where that tension could regularly arise.  The MSA’s “national standards” require the government to consider not only conservation goals, which must be based “upon the best scientific information” available, but also the risks of regulatory “duplication” and the economies of “fishing communities,” among other things.

It is true, as Professor Nielson argues, that agencies are unlikely to try pushing fake science “all the time.”  But the “incentives” for the “science charade” are real.  Consider the relevance of precedents like Baltimore Gas & Electric v. NRDC, which was reaffirmed by the Supreme Court only last year as “black-letter administrative law” in Seven County Infrastructure Coalition v. Eagle County.  Professor Nielson is right to underscore the potential danger for agency abuse.  And that danger is only amplified in light of other questions left unresolved in Loper Bright, such as the legitimacy of implicit delegations, judicial deference on mixed questions of law and fact, and the scope of so-called “housekeeping” provisions to authorize legislative rulemaking.

So, what can be done?  Professor Nielson makes several recommendations.  As he warns, an agency that is highly motivated to deliver on an aggressive regulatory agenda is likely to search long and hard for obscure or broad delegations that turn on determinations of scientific fact.  By implication, I take Professor Nielson to hope that Congress will do a better job designing (or revisiting!) its delegations to agencies to ensure they are not abused.  This should be one of Congress’s main takeaways from Loper Bright.  Professor Nielson also recommends “greater procedural formality in the regulatory process,” which could help ensure agencies are relying on the best science.  At the end of the day, these changes may be necessary to avoid “skeptical courts . . . erroneously reject[ing] agency conclusions that, in reality, are supported by good science.”

The paper on which Professor Nielson’s commentary is based is forthcoming in the Harvard Journal of Law & Public Policy and can be read here.

Ryan P. Mulvey is Senior Policy Counsel at Americans for Prosperity Foundation.  In his role at Cause of Action Institute, Ryan has served as lead counsel on Loper Bright Enterprises v. Raimondo since the initiation of the case.