Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking

Abstract

This article responds to critics of "hard look" judicial review of agency action, who contend that such review has ossified agency rulemaking by exposing agencies to uncertainty about whether their analyses in support of a rule will pass judicial muster. The article identifies three types of uncertainty to which hard look review exposes agency action: uncertainty about agency expertise, uncertainty about the significance of issues raised in agency proceedings, and uncertainty about the adequacy of analysis of such issues. The article explains why simply adopting a friendlier standard of review, which some critics of hard look review propose will not relieve this uncertainty unless it also forfeits the beneficial incentives that such review provides for agencies to take care before making policy. The article suggests instead some specific methodological changes to the way courts engage in hard look review as a more promising solution to ease ossification without forfeiting such benefits.