Judicial Review Of Administrative Decision-making On Risk Regulation

Risk regulation, which lies in uncertainty, brings challenge to judicial review. The uncertainty and complexy of risk requires substantial administrative discretion to handle the issue, while the scientific uncertainty also makes the agency more vulnerable to special interests and makes it possible for agency to make policy choices disguised by science. Risk decisions made by agencies are influenced at the same time by the Congress, agencies and the court. The court shapes the contour of "good regulation" in the area of risk regulation by judicial review. Different approaches of judicial review convey different cognition of "good regulation", and are decided by different awareness of the roles played by the agency and the court and the competence of the court in the area of risk regulation. Rational-instrumental paradigm, which advocated by Judge Leventhal in D.C.Circuit Court, deems the agency as experts of fact finding, the main role of which is to afford related evidence analysis accordance with methodology. So judges applauding rational-instrumental paradigm, when conducting judicial review, immerse themselves in the technological matters to decide whether the agency abuses administrative discretion, and review the scientific evidence and methodology of the decision. While deliberative-constitutive paradigm, which advocated by Judge Bazelon in D.C.Circuit Court, pays more attention on the uncertainty and complexy of risk regulation. This paradigm grants substantial discretion to the agency to handle the issue, and promotes public rationality by deliberation. Judicial review dominated by this paradigm reviews whether the agency has materially promotes deliberation. The reviewing court reviews reasons of risk decision, including technological reasons and policy choices.Comparing these two paradigms, rational-instrumental paradigm devotes to control the legitimacy of administrative risk decision, but it could not assure agency’s policy choice when it pays too much attention to the evidential basis of administrative decision-making. Deliberative-constitutive paradigm makes regulation more flexible to handle the uncertainty and complexy of risks. It seeks to good regulation and discretion control by abundant deliberation, but the question is it’s difficult to judge when the regulator gets right or wrong. The federal courts are basically dominated by rational-instrumental paradigm, though there are always swinging vote in cases. Neither of the paradigm is perfect, but it represents the effort devoted by the court to find a balance between the administrative efficiency and legitimacy. It’s also a conversation conducted among the Congress, the agency and the court about what accounts a "good regulation" in the area of risk regulation.As to the situation in China, the law by NPC and the rules by the State Council are both dominated by rational-instrumental paradigm and ignored the paradigm of deliberative-constitutive. They promote expert rationality and public participation to seek legitimacy of administrative decisions. The question here is that rational-instrumental paradigm couldn’t afford agency internal motivation to promote pubic participation, while deliberative-constitutive paradigm brings more benefits. Subject to judicial and political system in China, it’s difficult for our courts to shape the contour of "good regulation" in a short time. At the same time, "White Paper of administrative trial" is a beneficial practice to construct such a conversation between the court and the agency.