Texas v. EPA/Concurrence Clark

CLARK, Circuit Judge, with whom BOYLE, District Judge, joins, specially concurring.

I concur without reservation in the entirety of Judge Bell's thoroughgoing, able opinion. The sole purpose of this addendum is to highlight the adverse effects flowing from the legislative mandate that judicial review proceedings be injected into the court system at the appellate level.

No formal hearing has ever been held in this highly technical, factually complex matter. The administrative "record" upon which we had to base our review was comprised of only the sparest of documentation, for it essentially evolved from an act of agency rule-making. To accentuate the problem the agency contracted the services of a private firm for the formulation of most of the rule requirements it ultimately [p322]  adopted here, so that not even intra-agency background for these actions was available. The writing judge was required to hold both pre and post-argument conferences with counsel for the parties to enable the three of us as a court to comprehend the substance of the issues and conduct a minimally meaningful review.

The subject matter of this action involves the health and welfare of millions of citizens, the continued business vitality of tens of thousands of firms and compliance expenditures costing billions of dollars.

These extensive rights deserve a more orderly process of judicial reflection.