RE: [CPEO-MEF] Administrative Record example sought

[walshw@pepperlaw.com]

I agree with the comments provided in the e-mail to which I am replying.  I
would emphasis the following.  As a matter of law, the court, not the
administrative agency, is the ultimate arbiter as to what should be in the
administrative record.  Most courts will lean toward including documents and
submissions that have been made in a timely manner.  There is a rich case
law pursuant to the National Environmental Policy Act (NEPA) and Superfund
ordering the inclusion and consideration of submissions.  However, although
the courts can lead the administrative agency horse to water and even make
the agency explain the reasons that it is not agreeing with the comment,
unless the decision is arbitrary and capricious or otherwise not in
accordance with law, the court usually will not make the agency agree with
or follow the comment.

As administrative law history shows, however, busy officials often try to
exclude comments and do not respond to them. Thus, as the prior commenter
noted, the first rule is to make your comments.  These should be technical,
policy, and legal.  The second rule is that you should insist that some
document responds to the comments.  You are more likely to obtain a judge's
attention if the agency simply ignores the comment.  Finally, if after the
administrative decision is made, you may seek to appeal the decision based
on the record (a very difficult road to hoe) or seek to reopen the record
based on new science, new regulatory findings or requirements, new law or
new policy developments.  All that said, the likelihood of succeeding in a
legal challenge to a cleanup decision (although not impossible) is very
difficult.

Exactly what is arbitrary and capricious is difficult to define in the
abstract.  One might look for expert scientific groups who disagree with an
agency finding, prior inconsistent statements by agency officials,
inconsistent statements by other agencies, inconsistent findings or
determinations in other cleanup decisions, and plain old errors.


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