Record review challenges to federal agency decisions in the environmental context are, arguably, among the most frequently litigated and, yet, the least frequently won or favorably settled federal cases. Several case studies from the highly regulated oil, gas, and commercial fisheries industries reveal insights into successful strategies. These case studies suggest that for lawsuits won by industry plaintiffs, common notions of record review cases as simpler, quicker, less costly, and more predictable are untrue, and that the risk of Pyrrhic procedural victories is high. Plaintiffs looking to actually prevail, not just fight the good fight, must demonstrate commitment and stamina, significant forethought, and case-specific procedural and substantive strategies.
The exercise of government authority by the executive branch and its agencies—whether at the federal, state, or local level—is a ubiquitous factor in the lawful conduct of business in the United States. As government agencies have grown in number and importance, their involvement in establishing applicable process, requirements, and guidance; in reviewing proposals and issuing essential permits and other approvals; in monitoring, inspecting, and reporting on facilities, employees, contractors, and activities; and in pursuing enforcement has become seemingly limitless. In intensely regulated industries, such as oil and gas, mining, and commercial fisheries, interactions with government agencies in their proprietary capacities as land and resource owners, and in their multiple administrative capacities as rulemakers, permitters, enforcers, and adjudicators, have increased from occasional and routine in just a few specific areas, to common, unavoidable, and exhaustive in scope and effect....
Originally published in Environmental Law Institute®, Washington, DC - July 2013.
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