Building the Record for Judicial Review

Discretion must be based on some sort of reasoning that is evident in the record. The agency must be able to offer justification for its decision. AND
§ 701 excludes agency action for judicial review "to the extent" that the agency action is "committed to agency discretion by law"

The law prohibited the Fed Hwy Admin from providing funds for an interstate that went through a public park "unless there was no feasible and prudent alternative to use of such land." Tenn sought hwy funds for an interstate that would go through Overton Park. The Sec. of Transportation approved the use of the funds, but a local group challenged that approval. Sec claimed that the action was not judicially reviewable b/c it was committed to his discretion.

The SC disagreed, saying "this is a very exception," which applies "in those rare instances where 'statutes are drawn in such broad terms that in a given case there is not law to apply." Here the Sec was governed by a statutory requirement that plainly provided "law to apply."

(1) This would result in de novo review of the new material Like a trial transcript on appeal, the record is usually closed

(2) There can be an exception if the issue being appealed to the courts is the agency's failure to allow outside input and thus failing to consider all relevant factors.The court can allow the new material and give the agency a chance to supplement its record in response

There can also be an exception if the plaintiff makes a credible showing of significant bias by the agency and the court needs to evaluate it.The court can ask the agency to appoint an ALJ to take evidence and present it to the court.

Requires agencies to make sure the record for the case provides a clear basis for their fact-finding and policy decisions.

i. The courts cannot use hard look to change the underlying requirement that they defer to agency decisionmaking on facts and policy.
ii. Hard look analysis requires agencies to make sure that the record for the case provides a clear basis for their fact find and their policy decisions.
iii. The court cannot change the decision, but it can require the agency to provide better support for its decisions.

the agency will develop an evidentiary record which reflects the factual &
analytical basis of their decisions. In so doing they will weigh the relevant alternatives, listen to affected interests and offer detailed explanations for their conclusions. The ct will then look to see if the agency adequately justifies its choice (this was the case in Overton Park & Scenic Hudson). The court will defer to the alternative chosen if after the probing review there was adequate consideration. If it was not done the ct will remand to the agency to consider all alternatives. Most times the agency returns with the same conclusion. The hard look review seems to be interference in the agency's policy making process. The harder the ct looks the more it will find defects

The courts cannot use hard look to change the underlying requirement that they defer to agency decision Collectively, these concerns have sometimes been expressed as a need for "reasoned decision-making." . . . However expressed, these more substantive concerns have been coupled with a requirement that assumptions be stated, that process be revealed, that the rejection of alternate theories or abandonment of alternate course of action be explained and that the rationale for the ultimate decision be set forth in a manner which permits the . . . courts to exercise their statutory responsibility upon review.making on facts and policy.

The USSC in Overton Park, states that, while they will continue to apply the A/C standard of review and to defer to agency actions, the decisionmaking process will be much more strictly scrutinized. In Overton Park, the USSC required that the A/C standard be applied in a 3-step analysis.

makes agency make decisions based on a record and not conjecture. Builds a good record for an appeal.

costly to weigh all of the alternatives. It's costly for the affected party to continue to litigate the case. It is also a time consuming process which results in significant delays- the agency wants to move forward but has to spend time doing this analysis. On the other hand the time delay is often good for some of the regulated as it buys them time before they have to make behavioral changes or before unfavorable regulations are implemented. Sometimes it results in aborting the proposed agency action. It also allegedly results in a better decision-making process

less costly and less time consuming but requires more immediate action by the regulated to conform, and can in theory lead to hastily drawn conclusions and worse decision-making process than available under a hard look review.

If an old rule is rescinded, agencies must publish reasons why that rule is no longer necessary. (an "adequate basis") Need reasoning evidence

The Court found that the agency's decision to rescind the safety regulations was not factually supported by the agency record, which was an arbitrary and capricious abuse of discretion

That lawyers are important agents within the area of administrative law, and can affect change in agency action that was predicated on political ideology.