Recommended Citation

Sanne H. Knudsen, Sidestepping Substance: How Administrative Law Plays an Outsized Role in Shaping Environmental Policy and Why Recalibration is Necessary, 73 Admin. L. Rev. 519 (2024), https://digitalcommons.law.uw.edu/faculty-articles/1108

Authors

Sanne H. Knudsen, University of Washington School of LawFollow

Sidestepping Substance: How Administrative Law Plays an Outsized Role in Shaping Environmental Policy and Why Recalibration is Necessary

Publication Title

Administrative Law Review

Keywords

administrative law, environmental law, judicial review

Document Type

Article

Abstract

Administrative law and environmental law are companion fields. Still, they are not interchangeable. They promote different values. And yet, sometimes when courts resolve environmental disputes by relying on administrative doctrines, courts elevate the values of administrative law over those codified in environmental statutes. This is particularly concerning when courts rely on judicially-created administrative law doctrines to sidestep congressional intent as expressed by the substantive aims of environmental statutes.

To reduce the risk of sidestepping—whether inadvertent or intentional—this Article critically examines how administrative law doctrines can undermine environmental law. Drawing on prominent case examples, including the Supreme Court decision in Sackett v. EPA, this Article shows how administrative law can be operationalized to destabilize environmental law, thwart the law’s need for predictability, and otherwise create pathways for judicial activism. This Article goes on to examine the three features of administrative law that allow courts to use it as a tool for sidestepping environmental law’s normative aims: fluidity in individual application, evolution over time, and roots in tenuous textual tethers.

Ultimately, this Article calls for a recalibrated approach to the relationship between administrative law and environmental law in judicial review—one that puts administrative law in its place and gives due respect to the values that Congress codified in the underlying environmental statutes. Doing so will foster the integrity of both fields.