The Dangers of Agency Doublespeak: The Role of the Judiciary in Creating Accountability and Transparency in EPA Actions

Since their inception, administrative agencies have played a critical role insetting the trajectory of national regulatory schemes. Over the last severaldecades, agencies have become increasingly responsive to executive policypositions. Though executive control of agency action has long been accepted asa desirable system of accountability, the increasingly partisan and politicizednature of executive policymaking has consequences, including a lack oftransparency and a departure from the legislative purpose for agency regulation.These consequences are exacerbated by the super deferential standard employedby the courts when reviewing an agency’s nominally science-based decisions.Together, strong executive control and super deferential judicial review allowagencies to disguise their politically motivated decisions in deliberatelyambiguous and evasive reasoning—“doublespeak.” The dangers of doublespeakwere particularly notable in Environmental Protection Agency actions under theTrump administration, which engaged in starkly deregulatory behavior byabruptly reversing former, more protective Clean Air Act regulations. By movingaway from super deferential review and towards a “fidelity model” thattransparently interrogates the underlying motivations for agency action, courtscan counteract the negative consequences of agency doublespeak.