Citizens to Preserve Overton Park v. Volpe (1971) - Scope of Review of Agency Action

i'm drew stevenson and this is a lecture for about the administrative law case citizens to preserve overton park the volpe we usually just call this the overton park case this is a u.s supreme court decision from 1971 about the scope of review of agency action now for my students this is one of the most important cases or most famous cases in administrative law it's in almost every administrative law casebook in fact some casebook authors refer to it as the marbury v madison of administrative law it's also associated with something called hard look review or the hard look doctrine we'll talk about that a little bit at the end of this video but you may want to connect this to other cases or lectures about hard look review in your course but overall this is not i know that every case book has some cases that are just for illustration and others that are really important like they have a doctor named after them and this is the latter this is one of the cases that you really should pay attention to and really should know by name so the big takeaway here is that the case is about the standards of review that are set forth in the administrative procedure act in section 706 when we have judicial review of an agency action there's different types of kind of either judicial deference or judicial scrutiny that can be applied depending on the type of case and so the most common is arbitrary and capricious review under 706 um two a and the court uses this um what appears to be in its phrasing uh lenient um review but applies it in a rather non-deferential way and that by the way this case is about the approval of interstate highway construction right through downtown memphis basically um which would bisect a large park and here is the secretary this ca the agency in this case is the department of transportation or the secretary and the secretary of transportation john volpe at the time who authorized federal funding to complete a highway project for interstate 40 in memphis that would have run through this large public park to put it in perspective so we have this park it's a la i mean it's a few hundred acres and it's right in the middle of memphis and i-40 was being this remember this is the era when we're completing the interstate highway system i-40 runs east west across the united states and kind of stopped at one side on the of memphis and picks up again on the other side and this was about connecting the dots or finishing the highway the secretary complied with the apa's procedural requirements and another statute the federal highway statute in making his decision it seemed the determination seems clearly not to be a rule by the way this is not rule making just don't confuse it with promulgating regulations so section 553 about notice and comment rule making don't really apply here and you can see in the map here that the city of memphis has a highway kind of a loop that goes around it and the proposal was to run this stretch of i-40 through the city now this type of decision is arguably adjudicatory in form although we didn't have a hearing or adjudication why because it's an approval of a specific highway proposal but there was no statute that required that the decision be made on the record after an opportunity for an agency hearing and so that we're not talking about formal adjudication like we did in our social security cases for example state and local officials were required to hold some public legislative type hearings not under the apa but the other statute about highways and they did that actually so just keep in mind not only does 553 of the apa not apply that's notice and comment rule making but all of the sections about formal adjudication 554 556 and 557 are also inapplicable in this case and there's no due process issues here we're not talking about a liberty interest or property interest of an individual that's at stake so again here's the map and this is i-40 that runs across and we had a loop that's 240 that goes around the city and we we're going to connect the middle part there now here's our statute and this actually is where this whole process hits a snag the federal-aid highway act of 1968 articulated a national policy to preserve parks and so while at the same time fostering highway development and so there's an issue right that parkland because you don't have private owners if it's owned by the government then we don't have some of the same eminent domain issues and we don't have to go through the hearings and so the concern was that the government would have a perverse incentive to run highways through um parklands and so they basically built right into the highway act that we're going to you need to find alternatives if at all feasible and instead of running highways through parklands and there's a similar act called the transportation act of 1966 and both of these statutes use almost the same language to preclude federal funding for highways through parks unless and i put it in bold here there is no feasible and prudent alternative and all possible planning to minimize harm resulting from its use is undertaken and again you can kind of see in the map here where the proposed highway is this is a nice zoom in of overton park and you can see in the southern part there they had athletic fields and kind of rolling hills if you go further south there's a golf course and that northern section actually has a very popular zoo um and there was already a parkway a local like two-lane road separated by an island in the middle but this section in the middle it was going to be the proposed six lane expressway to connect i-40 and so it would go through the park now um the keep in mind there were a lot of players here you have the state and local officials and they all wanted this so before tennessee had applied for federal funding state and local officials had of course determined that the location of the projected highway would be prudent they wanted it to go there but there were some private citizen groups we sometimes we call them nimby groups not in my backyard who didn't want a highway near their property because they thought it would affect their property values and there were also some conservation or environmental groups that said we should not do this because it would sever most of the park again from this popular zoo and they also worried about resulting pollution and traffic control and safety problems and the failure to invest in mass transit so they wanted to kind of a deal with all these other things some of their counter proposals were a little far-fetched like building the highway somewhere else or digging this massive tunnel underneath the entire entire park and routing the highway through this long tunnel and so and so forth instead of just connecting the dots by the shortest distance possible but the responsible officials thought that the highway would ease traffic access to memphis and um so in other words if you kind of look at the map here what was happening was um through traffic that's trying to cross the uh cross country on i-40 would get off the highway when they got to one side of memphis and cross through memphis on local roads and this caused a lot of backed up traffic at stoplights and stop signs and congestion in general and they thought they could get the traffic the through traffic off the local roads and they would just uh on to the highway so that would just continue zipping on through and in fact the state of tennessee had offered to pay memphis two million dollars in compensation um for the loss of the part of the park and memphis was excited about that because they were going going to take that two million dollars and buy more park land so the memphis city council and the tennessee highway department and the federal highway administration had all arrived at a collective judgment that there was no feasible or prudent alternative plan to achieve benefits that a highway through overton park would realize so let's talk about the holding in the case right and so we've been talking about the park and for those of you who are looking what part of this case should i highlight this case is a little confusing because the court goes through a whole bunch of alternatives that are proposed by the litigants by the plaintiffs that they then reject they discuss at length and then reject so they really get to the heart of their decision here and i have a quote when they start talking about 706 2a and arbitrary and capricious review so they say that 706 2a requires uh finding that the actual choice made was not arbitrary capricious or an abusive discretion or otherwise not in accordance with law so that's the text of 706 right there and and then the court says to make this finding a court must consider whether the decision was based on a consideration of the relevant factors and whether there was has been a clear error of judgment in other words how if you that looks very deferential right that they were supposed to defer to the agency unless it was arbitrary capricious and abusive discretion or otherwise not in accordance with law but how do you evaluate that and that's what this case is really about so the court notes that the secretary did not demonstrate that he had made formal findings or status reasons for allowing the highway to be built this was a simple authorization right he issued an approval notice instead of explaining in detail or including reports with it that they had considered all of these alternatives and had ruled them out as not really viable and so forth now remember this was a long process and lots of meetings there must have been a lot of documents generated and reports and meeting minutes and so forth that were really part of the record of the decision-making process what the agency learned kind of the hard way in this case is that they were supposed to produce all of that up front and reference it as the justification for their decision the court continues and i'm going to quote them the administrative record is not before us the lower courts based their review on the litigation affidavits that were presented in other words the um the agency the the department of transportation came in and said well we'll submit affidavits saying that we did consider all these other alternatives and there's no better way to do this than just just go straight through the park um but the court says these were merely post-hoc rec rationalizations which are an inadequate basis for review in other words you're not showing us the documents that the agency was looking at when it made its decision instead you're telling us after the fact you're giving us affidavits assuring us that you did a good job in making the decision and so they don't constitute the whole record and remember the administrative procedure act in 706 requires that the review is based on the whole record of the agency's decision making so it's necessary to remand this case to the district court for plenary review of the secretary's decision and that review is to be based on the full administrative record that was before the secretary at the time he made his decision when you were a kid and you had math class did you have a teacher that asked you to show your work right and they didn't want you to just answer the question on a test or quiz they actually took off points if you didn't show your work that's an kind of an analogy to what's happening here the court is telling the agency you don't get to just make a decision a yes or no and then tell us by affidavit that you really did think about it we want you to show your work you need to come into court um and show us how you the process you had meetings on these days you read these reports everybody officially accepted these reports you commissioned some studies you considered these alternatives and here are the five reasons that you ruled them out and so forth show your work and essentially overton park is a the court saying to the agencies if you want us to defer to you you have to show your work otherwise we have no way of knowing that you didn't just flip a coin or um throw a dart at a dartboard to make your decision now i know that sounds unreasonable right no one really thinks the secretary of transportation is shaking a magic eight ball to decide whether to finish highway construction but the court basically wants them to document things and show the documentation in the record okay we're almost done here by the way as you read this um very famous opinion note that the court does something that is either clever or sloppy depending on your perspective they alternate between articulating substantive concerns like has maybe the agency did something wrong maybe they made a clear error of judgment and procedural concerns was the decision based on a consideration of the relevant factors so try to keep that straight in your mind at least after the case don't let the case confuse you there's a difference between asking did the agency have a decision-making process that seems appropriate like we can trust this process even if the decision the final decision they made is not what we might have guessed or what we would have made a substantive concern is when we're concerned that maybe the agency is doing the wrong thing and arbitrary and capricious is supposed to be focused on the latter right on the process but sometimes they get mixed together now i have to say something about hard look review because overton park this case has become associated with that doctrine or concept and you should know a little bit about it i'll discuss hard look review in more detail in a separate video but a very famous dc circuit court of appeals judge harold leventhal later dubbed kind of coined the phrase hard look review and um and for initially this meant what the agency was supposed to have done and when he so the person who coined the phrase actually thought that overton park was an example of this or had endorsed this approach that the dc circuit had started to take so here's how he and originally understood hard look review a reviewing court must reverse an agency action unless the agency shows it has taken a hard look at the salient problems and engaged in genuinely reasoned decision-making in other words if the courts are going to have a role here in judicial review for agency decisions right they're not supposed to substitute their own judgment for the agency's judgment for the decision the agency has more expertise they're the ones that congress entrusted with the power but what we want to say see is that the agency is actually doing their job is working through the problems considering all of the relevant factors um that they've appreciated the difficulty and that there were alternative ways to do this and so forth and they are demonstrating that they're putting on some evidence to show that they took a hard look at it so originally hard look review referred to the requirement that the agency take a hard look at the problem now over time the term has generally can come to convey the idea that the court is going to take a hard look at the agency's hard look right and whether the agency is decision and reasoning process even though the court is ultimately not supposed to substitute its own preferences um and uh and policies for the agencies and if you're wondering what happened here's what we have uh to this day we didn't ever run um i-40 through this it gets remanded to the lower courts and continues litigating until essentially the agency kind of exhausts its resources so what they did was they put up signs that 240 is also i-40 on the northern loop of the city so what happens and so instead of going straight through like they had planned on the shortest distance when you get to one side of memphis you basically get on i-42 i slash 240 for a while and loop the city and then pick it up on the other side okay and that concludes our lecture about overton park

Channel: Professor Stevenson

Views: 4,333

Keywords: Overton Park, judicial review, arbitrary & capricious, scope of review, standards of review, Administrative Law, Admin Law, AdLaw, Regulation, Regulatory law, Public Law, Dru Stevenson, law school, STCL, STCLH, Zoom law school, Leg-Reg, Legislation course, deep state, bureaucracy

Id: a_rh7Vw_Y-4

Length: 17min 46sec (1066 seconds)

Published: Thu Nov 19 2020