I've just posted on SSRN a first draft (in preparation for the impending Conference on Empirical Legal Studies paper submission deadline) of my paper An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation & the Chevron Doctrine in Environmental Law. I'd sincerely appreciate any comments on the piece at firstname.lastname@example.org. The Abstract:
How do the United States Courts of
Appeals decide environmental cases? More specifically, how do courts
evaluate decisions of statutory interpretation made by government
agencies that deal in environmental law? While research on judicial
decisionmaking in environmental law has primarily focused on the D.C.
Circuit, the Environmental Protection Agency, and the influence of
ideology, only recently have legal scholars begun to consider the role
of legal factors in judicial decisionmaking in environmental law. Yet,
too little is known about environmental jurisprudence outside the
District of Columbia, the “other” environmental agencies, and the
influence of legal interpretive approaches and legal doctrine—as
opposed to ideology—in environmental law cases. With special attention
paid to how courts implement the Chevron doctrine, this Article
empirically and doctrinally analyzes environmental law cases decided in
the U.S. Courts of Appeals over a three-year period (2003-2005) to
investigate what factors, including ideological, legal and
institutional variables, impact judicial review of administrative
agency interpretations of environmental statutes.
Relying on empirical analysis and descriptive data, this Article finds that environmental cases of statutory interpretation, usually litigated in the D.C., Second and Ninth Circuits, are dominated by EPA involvement and interpretation of the Clean Air and Clean Water Acts. This Article's findings confirm earlier research that judges vote in their perceived ideological direction and show the Chevron doctrine, when employed in environmental cases, works as expected—courts find most statutory provisions ambiguous and then affirm agency action. There is limited evidence that judges strategically use Chevron step one to achieve desired policy preferences—at the ideological extremes, conservatives deferred to Bush Administration agencies under Chevron step two, while liberals were more likely to reverse the agency by finding the statute unambiguous under step one. Legal preferences, however, do play some role in judicial decisionmaking, and not necessarily to achieve an individual judge's policy preferences. Invoking legislative history mildly corresponds to a liberal vote, yet ideology does not predict its invocation—suggesting a judicial philosophy toward legislative history actually impacts voting outcomes and lends support for the legal model of judicial decisionmaking.
This Article also makes a number of qualitative findings. Doctrinally, there remains much confusion and conflation in the circuits over how to apply the Chevron doctrine, manifested through poor opinion organization, befuddlement over the application of Chevron step zero, and multiple understandings of the difference between arbitrary and capricious review and the two Chevron steps. The circuits have shown, however, a strong willingness to defer, under any doctrine or framework, to agency action when environmental scientific expertise is required. Ultimately, this Article supports a more nuanced notion of judging in environmental cases that depends upon policy preferences, interpretive philosophies, standards of review, and scientific complexity.