Bias in Environmental Agency Decision Making

Abstract

Allegations of bias in administrative environmental decisions are common and seemingly increasing because of the significant economic and political interests in many disputes. From high profile national oil spills to local land use matters, parties to environmental proceedings allege conflicts of interest, favoritism, prejudgment of outcomes, commingling of prosecutorial and adjudicatory functions, ex parte communications, and improper political influence.

Where bias occurs, it can significantly impact the implementation and enforcement of environmental laws. Biased proceedings can undermine the goals of environmental laws by causing prejudiced decisions not grounded in law or fact, ultimately harming public health and the environment. The mere perception of unfair proceedings can undermine the credibility of environmental agencies and erode support for and compliance with environmental programs.

Despite the prevalence of allegations of bias and their impacts, there has been no systematic effort to address the types of improprieties that arise in environmental proceedings and the application of legal rules governing bias in those proceedings. This Article addresses that gap through both a doctrinal and empirical examination. It examines the basic principles governing fairness in administrative proceedings and illustrates how environmental cases have dealt with allegations of biased decision makers. It then provides the results of the first comprehensive empirical study of cases dealing with bias in environmental proceedings, finding that while courts do not often find agency decisions unlawful on grounds of bias, claims have increased over the last four decades and, in some types of cases, have reasonable rates of success. The Article concludes with observations on addressing bias and suggests reforms that would provide greater fairness in the handling of potential bias issues.

Keywords: environmental law, bias, environmental agency, conflict of interest, adminstrative law, administrative agency