Last week, in Styrene Information and Research Center v. Sebelius, Judge Reggie Walton of the District Court for the District of Columbia rejected challenges to the decision by HHS Secretary Kathleen Sebelius to list styrene as “reasonably anticipated” to be a carcinogen.  The case does not really break any new ground, but is a solidly written summary of several recurring issues in administrative law relating to review of agency decisions.

One important issue addressed by Judge Walton was how focused a comment on an agency decision must be to avoid arguments by the agency that the comment was waived by not being presented with sufficient particularity.  Here, the plaintiffs challenged in court the so-called “Listing Criteria” used to determine whether substances are known or reasonably anticipated to cause cancer.  However, while plaintiffs had commented on HHS’s application of the Listing Criteria, the Court concluded that they had not clearly commented on the Listing Criteria themselves.  Thus, the argument was waived.

The Court also reviewed the basic rules for determining whether agency action is arbitrary and capricious.  In this context, it’s worth noting that Judge Walton is not one to kow-tow to agency decision-making.  This makes him somewhat unusual in today’s polarized judiciary, in which all too often it seems that liberal judges interpret deference as abdication, while conservative judges simply honor the notion of deference in the breach, overturning agency actions which due deference would cause to be affirmed.

Judge Walton first noted that the standard is “highly deferential” and that the Court “must presume the validity of agency action.”  He then stated that

where, as here, a court is reviewing an agency’s evaluation of “‘scientific data within its technical expertise,’” the arbitrary and capricious standard of review is “‘extreme[ly] deferential.’” This is because courts “review scientific judgments of the agency ‘not as the chemist, biologist, or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.’”

Reviewing HHS’s stated reasons for listing styrene, Judge Walton concluded that the evidence relied upon by HHS justified the listing on two, independent grounds: “’limited evidence’ of carcinogenicity in humans, and ‘sufficient evidence’ of carcinogenicity in animals.”  Case dismissed.