Arbitrary and capricious
Regardless of how the DCS suit fares, it seems to us that the concept of “arbitrary and capricious” is important to keep in mind with regard to public comments on the DRBC’s proposed regulations on gas drilling. Among other things, it underlines the importance of having an abundance of well-documented, well-reasoned comments. That’s because, according to William F. Funk and Robert Seamans’s text “Administrative Law,” only those factors that are on the administrative record at the time the agency makes the rule or regulation in question can be considered later by the court in deciding whether the “relevant factors” have been taken into account—and comments go on the administrative record. If an agency issues regulations that do not take them into account, it is risking an “arbitrary and capricious” court challenge.
In the case of natural gas drilling in particular, there is an additional factor teeing up a potential “arbitrary and capricious” challenge to any regulations that the DRBC might issue in the near future. The fact that two cumulative impact studies have been proposed—one under the aegis of the DRBC itself, the other by the EPA—and that neither of them has been completed, or will be completed for a couple of years, opens the DRBC’s proposed regulations to a court challenge. If issuing regulations for an activity without waiting for scientific evidence of what damage it can do doesn’t count as “arbitrary and capricious,” we’re not sure what would. We would therefore encourage those who think that the DRBC is acting prematurely by issuing any regulations at all this year to enter comments to that effect into the record—remembering to include facts and documentation.
None of this should be taken to impugn either the motives or the efficiency of DRBC personnel. But the DRBC as a whole is under immense political and corporate pressure to act in a way and on a schedule that does not and cannot take all the key “relevant factors” into account. Perhaps the potential for an “arbitrary and capricious” challenge—combined with the recent court ruling on NIETCs, as a reminder of the fact that the courts can and do sometimes upend rash regulatory decisions—might make the DRBC stop and think about whether acting without scientific evidence is actually going to get it anywhere.
[Comments can be submitted at parkplanning.nps.gov/projectHome.cfm?projectId=33467.]