An article co-authored by J.B. Ruhl and Kyle Robisch ’14, “Agencies Running from Agency Discretion” (William & Mary Law Review, 2016) has been selected for the 2019 edition of the Land Use & Environmental Law Review.
The Land Use & Environmental Law Review is a peer-reviewed compendium of the 10 best articles published the previous year addressing topics in environmental and land use law, with five articles selected in each category. The article by Ruhl and Robisch was selected in the environmental category from a pool of more than 100 articles reviewed by more than 50 environmental law scholars.
“Agencies Running from Agency Discretion” is the eleventh article authored or co-authored by Ruhl selected for inclusion in the prestigious compendium since 1989.
Ruhl holds a David Daniels Allen Distinguished Chair in Law and heads the Program on Law and Innovation. An expert who has studied environmental, natural resources and property law for almost 30 years, Ruhl has authored or co-authored influential scholarly articles relating to climate change, the Endangered Species Act, ecosystems, governance, and other environmental and natural resources law issues published in the California, Duke, Georgetown, Stanford and Vanderbilt law reviews, the environmental law journals at several top law schools and peer-reviewed scientific journals.
Robisch is an associate with Venable, where he practices in the firm’s environmental group in Washington, D.C. Before joining Venable, Robisch was a clerk to Judge G. Kendall Sharp of the U.S. District Court for the Middle District of Florida for two years. He won two writing awards from the American Bar Association and the California Bar Association during his third year at Vanderbilt Law , and his 2014 Vanderbilt Law Review Note, “Getting to the (Non)Point: Private Governance as a Solution to Nonpoint Source Pollution,” also received a prestigious Burton Award for Distinguished Legal Writing in 2015.
Their article addresses a current trend among federal agencies, such as the Environmental Protection Agency and the Forest Service, to claim they lack discretion over particular actions in order to avoid the costly and time-consuming due diligence required to assess the impacts of those actions on the environment. Ruhl and Robisch examined recent cases brought by interest groups challenging such claims made by these and many other agencies, which they term “agency discretion aversion.” Their article defines and describes “discretion aversion,” assesses its implications for future actions by agencies and courts, and examines concerns resulting from discretion aversion. They ultimately conclude that “the most effective reform will be to eliminate discretion as the litmus test” for whether agency action is subject to environmental assessment statutes. They end by recommending that agency discretion be replaced with different criteria aimed at improving agency decision making and ensuring that agencies continue to fulfill the crucial role of providing useful, actionable information to other political institutions and the public.