Transparency and Accountability in the Executive Branch: Judicial Review and the National Environmental Policy Act (NEPA)

Key Concepts

  • Exposing executive agencies to scrutiny—both public and judicial—makes them accountable for their actions and promotes good government.
  • NEPA requires federal agencies to consider environmental consequences of their actions, beginning with the initial proposal and continuing throughout the decision-making process. NEPA does not compel a particular outcome, but it makes the agency publicly accountable.
  • Judicial scrutiny holds agencies accountable if their actions exceed their legitimate authority or if they fail to take actions mandated by statute. A court will review final agency actions, not proposals or other interim steps.

Americans historically do not trust anyone with too much power; hence our system of checks and balances. Transparency is one check on the exercise of government power. Transparency refers to the custom or requirement that a governmental body’s decision-making and other actions occur in public view. This enables the public to scrutinize, criticize, and hold the government accountable.


The concept that officials should conduct the business of the public in full public view—not in secret

Transparency is especially important in the executive branch. Most of us have far more contact with executive agencies than with the other branches of government, and transparency helps assure they exercise their power appropriately. Two major means of promoting transparency of agency actions are judicial review and the National Environmental Policy Act (NEPA). NEPA provides a check specifically on executive actions affecting the environment. Judicial review is much broader, applying to executive actions regardless of subject matter.


If an aggrieved party files suit, a court can review an executive agency’s rule making or other actions to determine whether the agency exceeded its authority, or failed to follow required procedures, or otherwise violated law. This is called judicial review. If the court concludes the agency acted inappropriately, it can overturn the agency’s action.

judicial review

Review by a court of a contested action or decision of a lower authority; the context could be a challenge to an executive regulation or an appeal from the judgment of a lower court

Judicial review is available for various significant agency actions, such as the granting or denial of a permit or the imposition of administrative sanctions. But this chapter will focus on the agency function of issuing regulations.

To file any legal action, including a suit for judicial review, the plaintiff must have standing. Essentially this means the plaintiff must have an interest—a personal stake—in the subject of the suit. One very simple reason for this is that only the person whose interest is injured is entitled to the remedy. For example, if you carelessly hit John Doe with your car, only John can sue you for the cost of his medical bills. John’s neighbor can’t file the suit, because he’s not the person injured, and he’s not entitled to the compensation.

Moreover, having a stake in the matter is important to ensure that the plaintiff will thoroughly litigate the issues, so that the court can make an informed decision. At the extreme, the standing requirement avoids sham lawsuits where parties with like interests collude to reach a certain result, which would be unfairly binding on others. For example, assume John Doe’s neighbor also happens to be your sister. If she were allowed to assert John’s claim against you, she might conspire with you to soft-pedal the evidence so that a lower verdict would be entered against you. Even in less extreme circumstances than an actual sham, justice is served when parties are motivated to make the best case possible. That requires having some threshold level of stake in the outcome.

In John Doe’s case, there is only one person with standing. In some cases, including a challenge to agency regulations, there are many people (or entities) who could potentially have standing. For example, assume the EPA issues a regulation that affects how much sulfur dioxide (SO2) can be emitted from industrial smokestacks. Companies that emit SO2 have a legitimate interest, because they incur costs when they have to reduce emissions. People with asthma have a legitimate interest, because SO2 in the air can harm their health. Public officials in affected areas have authority to represent the interests of their citizens. Any of these interested parties could file an action for judicial review, so long as they made their objections to the agency first, during the comment period.

Review of Agency Regulations

In chapter 1, we saw that an agency must meet procedural requirements in the adoption of regulations, commonly called the notice and comment process. To recap, the agency must publish a notice of proposed regulations, allow time for public comment, and then publish final regulations with a formal record. The record must include objections and other comments from the public, as well as an explanation of why any suggestions were or were not accepted into the final version. Although there are variations, such as the length of the comment period, these are the basic statutory requirements designed to ensure agency transparency.

The right to make objections during the comment period does not mean everyone will be satisfied with the final regulations. On the contrary, there are often people unhappy with final regulations. Opponents have one more recourse: they can sue the agency, seeking judicial review. At this point we can appreciate the importance of that formal record. The reviewing court does not take new evidence; what it reviews is the agency record. Hence, it is critical that all relevant factual evidence be submitted to the agency during the comment period, so that it will be included in the record. For environmental regulations, that factual evidence commonly includes scientific data and analysis.

The Requirement of Finality

Courts place great value on judicial economy, meaning they don’t want to waste time. One important illustration is that courts require the exhaustion of administrative remedies before they will hear a challenge to agency action. A court will not second-guess an agency if there is still opportunity to get your desired relief from the agency itself. Only final actions are subject to review.

exhaustion of administrative remedies

Using all available means at the administrative level to obtain the desired relief from the agency itself —a prerequisite to challenging the agency in court

final actions

A completed significant act by an agency, such as promulgation of a regulation or the issuance or denial of a permit, as distinguished from proposals, analyses, or other or interim steps leading up to the final action

Consistent with this policy, courts will grant judicial review of final regulations, but not of proposed regulations. To allow challenges to mere proposals or other interim steps would disrupt orderly government action. A challenger must raise objections during the comment period, to give the agency the opportunity to correct its own mistakes. The court will not waste its time on issues and evidence that the challenger didn’t bother to raise during the agency process.

Standard of Review

Courts apply different standards of review in different situations. The standard of review refers to the level of scrutiny the court will apply—in other words, the degree to which the court will second-guess the agency. Two standards you will frequently see applied are arbitrary and capricious and substantial evidence.

standard of review

The degree of strictness or deference a court applies in evaluating a challenged decision of a lower court or agency; the standard varies, depending on the circumstances”

  • If the standard of review is arbitrary and capricious, the court will uphold the agency action unless the agency had no reasonable basis for its decision.

  • The substantial evidence standard is slightly more demanding. It doesn’t require that all or even most of the evidence support the agency’s decision. But it must be supported by more than a scintilla (tiny bit) of evidence. There must be evidence that a reasonable person might find sufficient to support the decision.

arbitrary and capricious

A very deferential standard of review, under which the court will uphold a challenged decision unless there is no reasonable basis for it

substantial evidence standard

A fairly deferential standard of review, under which the court will uphold a decision as long as there is some evidence a reasonable person might find sufficient to support the decision

Judicial Deference

There is a tradition of judicial deference to agencies with respect to policy decisions, as well as factual decisions within the agency’s expertise.

judicial deference

The custom of courts to respect and defer to the expertise of an executive agency on certain issues

One major type of policy decision consists of interpreting a statute that the agency is charged with implementing. An example would be the Clean Air Act’s mandate to “protect public health.” Other interpretations are conceivable, but the EPA interprets these words to require setting air quality standards that will prevent air pollutants from causing any increase in the incidence of disease. Courts are the ultimate authority on interpreting law, but there are good reasons for a court to defer to the EPA. First, environmental protection is a highly technical area, in which the EPA has far more expertise than any court. Further, Congress gave the mandate to the EPA rather than to the courts; so when a statute is subject to multiple interpretations, the EPA’s interpretation should be given great weight. Moreover, judicial deference promotes stability in society and the economy. If every statutory interpretation by the EPA had to be litigated all the way to the Supreme Court, nobody could rely on regulations until the final ruling years later.

Courts are even more deferential on factual issues, which commonly involve complex scientific questions within the EPA’s special expertise, and for good reason. The EPA often deals with questions on the cutting edge of science, where there is no definite “right” answer. The court will not upset the EPA’s judgment just because the scientific evidence could support other possible conclusions. Otherwise, the agency’s regulatory efforts would be hamstrung in unending litigation. Therefore, the inquiry on review is whether the agency reached a scientifically reasonable conclusion, not whether it reached the best or only conclusion.


Judicial deference does not mean the court always upholds an agency regulation. If the court decides the regulation is defective, what happens then? It varies depending on the circumstances. One thing the court won’t do is write the regulation itself.

One fault the court might find is that the agency failed to follow the required procedures. In that case, a court typically sends the regulation back for the agency to start over.

If the court finds the agency exceeded its statutory authority, the court can invalidate the regulation or some discrete portion of it. Alternatively, a court may limit the regulation’s applicability, if that would cure the problem. Or the court may send the regulation back to the agency to try again.

Judicial Review of Agency Inaction

The EPA can be taken to court not only to challenge its actions, but also to challenge its failure to act. If the EPA fails to issue regulations, or to perform some other nondiscretionary action mandated by statute, an appropriate party can file suit asking the court to compel the agency to act. Most federal environmental acts allow citizen suits for this purpose, which can be filed by a private individual or group that has standing (see text box). State and local governments have standing to file suit for the protection of their constituents.


Having a sufficient stake in, or connection to, a matter to be eligible to sue