All environmental practitioners have encountered situations in which they have been convinced that an executive agency is making a decision—a rulemaking, a permit grant or denial, a remedy selection—based on an expressed rationale that does not seem like the real reason. When does that go so far as to render the agency action infirm?

Recent events may have put this issue in mind. But, to be fair, many explanations of administrative agency decisions display some degree of disingenuousness. After all, any decision by an agency intentionally entails input from many people. The more consequential the decision the more people inside the agency, in other agencies, and outside the government are invited to weigh in. Different members of a bureaucracy may have different reasons for supporting or acquiescing in the decision. No single expressed rationale can possibly capture all their potentially inconsistent private views. Therefore, every expressed agency rationale will, at some level, be a constructed description of reasoning that does not fully disclose the internal and external discussions, politics or negotiations that led to the result.

Read “When an Agency’s Rationale Isn’t the Real Reason” authored by David G. Mandelbaum on The Legal Intelligencer website. (subscription).

Click here to download the PDF.

*The opinions expressed in this column are those of the author and do not necessarily reflect the views of Greenberg Traurig or its clients.