International Harvester Co. v. Ruckelshaus/Concurrence Bazelon

by David L. Bazelon

BAZELON, Chief Judge (concurring in result):

Socrates said that wisdom is the recognition of how much one does not know.^[1] I may be wise if that is wisdom, because [p651] I recognize that I do not know enough about dynamometer extrapolations, deterioration factor adjustments, and the like to decide whether or not the government's approach to these matters was statistically valid. Therein lies my disagreement with the majority.

The court's opinion today centers on a substantive evaluation of the Administrator's assumptions and methodology. I do not have the technical know-how to agree or disagree with that evaluation -- at least on the basis of the present record. My grounds for remanding the case rest upon the Administrator's failure to employ a reasonable decision-making process for so critical and complex a matter. At this time I cannot say to what extent I could undertake an evaluation of the Administrator's findings if they were based on an adequate decisional process.

I cannot believe that Congress intended this court to delve into the substance of the mechanical, statistical, and technological disputes in this case. Senator Cooper, the author of the judicial review provision, stated repeatedly that this court's role would be to "determine the question of due process."^[2] Thus the court's proper role is to see to it that the agency provides "a framework for principled decision-making."^[3] Such a framework necessarily includes the right of interested parties to confront the agency's decision and the requirement that the agency set forth with clarity the grounds for its rejection of opposing views.

The majority's interpretation of the present statute and the administrative precedents would give us no right to establish these procedural guidelines. Their opinion maintains that the strict deadlines in the Clean Air Act preclude any right to challenge the Administrator until after the decision has been made. It indicates that, since this hearing was "rule-making" rather than "adjudicatory", cross-examination and confrontation are not required under traditional rules of administrative law.

I understand this viewpoint, but I do not share it. I do not think the authors of the Clean Air Act intended to put such strict limits on our review of the Administrator's decision-making process. Further, the interests at stake in this case are too important to be resolved on the basis of traditional administrative labels. We recognized two years ago that environmental litigation represents a "new era" in administrative law.^[4] We are dealing here not with an airline's fares or a broadcaster's wattage, but with all humanity's interest in life, health, and a harmonious relationship with the elements of nature.

This "new era" does not mean that courts will dig deeper into the technical intricacies of an agency's decision. It means instead that courts will go further in requiring the agency to establish a decision-making process adequate to protect the interests of all "consumers" of the natural environment.^[5] In some situations, traditional rules of "fairness" -- designed only to guard the interests of the specific parties to an agency proceeding -- will be inadequate to protect these broader interests. This is such a case. Whether or not traditional administrative rules require it, the critical character of this decision requires at the [p652] least a carefully limited right of cross-examination at the hearing and an opportunity to challenge the assumptions and methodology underlying the decision.

The majority's approach permits the parties to challenge the Administrator's methodology only through the vehicle of judicial review. I do not think this is an adequate substitute for confrontation prior to the decision. I reach this position not only out of concern for fairness to the parties (". . . for if a party first learns of noticed facts through the final report . . . the burden of upsetting a decision announced as final is a heavy one." ^[6]) but also out of awareness of the limits of our own competence for the task. The petitioners' challenges to the decision force the court to deal with technical intricacies that are beyond our ken.^[7] These complex questions should be resolved in the crucible of debate through the clash of informed but opposing scientific and technological viewpoints.

It is true that courts occasionally find themselves in the thick of technological controversies -- e.g., in patent cases. But those are different circumstances. We do not review patent disputes until they have been through a full panoply of procedures involving full rights of confrontation. Further, unlike our decision in a patent case, our decision on the Administrator's action here is sure to be tested by analysis and challenge in Congress, in the scientific community, and among the public.

My brethren and I are reaching for the same end -- a "reasoned decision" -- through different means. They would have us examine the substance of the decision before us. There are some areas of administrative law -- involving issues of liberty and individual rights -- where judges are on firm ground in undertaking a substantive review of agency action. But in cases of great technological complexity, the best way for courts to guard against unreasonable or erroneous administrative decisions is not for the judges themselves to scrutinize the technical merits of each decision. Rather, it is to establish a decision-making process which assures a reasoned decision that can be held up to the scrutiny of the scientific community and the public.^[8] "The best test of truth is the power of the thought to get itself accepted in the competition of the market."^[9] If we were to require procedures in this case that open the Administrator's decision to challenge and force him to respond, we could rely on an informed "market" rather than on our own groping in the dark to test the validity of that decision.

Candor requires the admission that the process of confrontation and challenge might not be possible within the statutory decision period of 60 days. My response would be to permit an extension of the time limit -- perhaps 30 days more. This would put less strain on the overall statutory scheme -- and on the manufacturers' lead time -- than the months that have been expended in litigation, and now a remand, over the decision. Congress did not intend for us to enforce this relatively minor time restriction so strictly as to do major damage to the statute as a whole.

My brethren argue that the 60-day time limit in the statute precluded any opportunity for cross-examination or confrontation at the time of the original decision. But their opinion would apparently permit these procedural rights on the remand. This bit of judicial legerdemain confounds me. I can find nothing in the statute or common sense [p653] to support this distinction. If anything, the statute, with its obvious emphasis on reaching a final decision quickly, would dictate procedures at the original decision which were sufficient to produce a reasoned decision without the need for a remand.

Outside of the foregoing differences, I agree with much of the majority opinion. I would have preferred to make the "public interest" factor -- the considerations set forth in Part III of that opinion -- an independent ground for suspension. The court today deals with the public interest indirectly, through the device of burden of proof. I do not fully understand this approach, but I suspect it leads to essentially the same result I favor.

Footnotes

1. Plato, Apology of Socrates, § 57B.
2. 116 Cong. Rec. 33,086 (1970); cf. 116 Cong. Rec. 33,080, 33,084 (1970). One Senator referred to the court's "factfinding function"; his remarks make it clear that he could not have been referring to the review function of courts of appeal. 116 Cong. Rec. 33,085 (1970) (Senator Baker).
3. Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 88, 439 F.2d 584, 598 (1971).
4. Id. 142 U.S. App. D.C. at 87, 439 F.2d at 597. To the same effect is Mr. Justice Blackmun's opinion in Sierra Club v. Morton, 405 U.S. 727, 755, 31 L. Ed. 2d 636, 92 S.C.t. 1361 (1972) (dissenting opinion).
5. Environmental Defense Fund, Inc. v. Hardin, 138 U.S. App. D.C. 391, 395, 428 F.2d 1093, 1097 (1970).
6. 2 Davis, ADMINISTRATIVE LAW TREATISE, § 15.14 (1958).
7. Cf. this court's dictum, in Constructores Civiles de Centro-Americana v. Hannah, that "These forebodingly fecund matters were wisely placed beyond the ken of the judiciary." 148 U.S. App. D.C. 159, 168, 459 F.2d 1183, 1192 (1972).
8. Cf. Citizens' Association of Georgetown v. Zoning Commission, 155 U.S. App. D.C. 233, 477 F.2d 402 (1973).
9. Abrams v. United States, 250 U.S. 616, 630, 63 L. Ed. 1173, 40 S.C.t. 17 (1919) (Holmes, J., dissenting).