A “best science available” directive appears in a variety of environmental law statutes. Although seemingly clear, this directive has created an abundance of litigation with various plaintiffs challenging agency decisions under the Administrative Procedure Act’s (APA) arbitrary and capricious standard of review. The courts’ review of the agency decisions based on such science largely depends on the various ways in which the “best science available” directive is written in the particular statute. That is, the more specific the congressional mandate, the less latitude the agency has in implementing congressional will; the broader the statutory language, the more breathing space the agency enjoys. This in turn relates directly to the plaintiffs’ ability to bring about successful challenges to agency regulations. The less specific the statutory language defining what constitutes best science available, the more leeway is available to the agency, and the less likely the plaintiffs are to prevail on a challenge that agency actions are arbitrary and capricious under section 706 of the APA. Since agencies are given broad discretion in their decisions—even those based on science—this Comment argues for clear congressional guidelines in best science available directives, because only such guidelines would ensure greater agency compliance with congressional intent, give courts more direction in reviewing agency decisions under the APA, and, in the long run, maximize the scientific integrity of agency rules and decisions. In the environmental and wildlife protection contexts, this will ensure that agencies achieve Congress’s objectives, resulting in greater species protection.
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