Arbitrariness Review and Climate Change

In its ideal form, arbitrariness review is an instrument for promoting
“deliberative democracy”—a system that combines reason-giving with political
accountability. Under arbitrariness review in its current form, courts tend to embrace
the “hard look doctrine,” which has a procedural component, requiring agencies to
offer detailed justifications, and also a substantive component, in which courts assess
the reasonableness of agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in
government, in which scientific and economic judgments are overridden by political
considerations. With respect to regulatory policy, it is not enough to say that “elections
have consequences.”

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