1 Among the leading examples of interdisciplinary works by legal scholars calling on legal, political, and economic analysis are Stephen Breyer, Regulation and Its Reform (Cambridge: Harvard University Press, 1982); Bruce A. Ackerman et al., The Uncertain Search for Environmental Quality (New York: Free Press, 1974); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669 (1975); and James E. Krier & Edmund Ursin, Pollution and Policy: A Case Essay on California and Federal Experience with Motor Vehicle Air Pollution 1940-1975 (Berkeley: University of California Press, 1977).Google Scholar

2 Recent books by political scientists exploring interaction between courts and agencies include Eugene Bardach & Robert A. Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (Philadelphia: Temple University Press, 1982); Donald L. Horowitz, The Courts and Social Policy (Washington, D.C.: Brookings Institution, 1977); and R. Shep Melnick, Regulation and the Courts: The Case of the Clean Air Act (Washington, D.C.: Brookings Institution, 1983). Political scientists have generally failed to pick up on the provocative themes presented in an earlier work by Martin Shapiro, The Supreme Court and Administrative Agencies (New York: Free Press, 1968). The law and economics literature is vast but outside the scope of this review.Google Scholar

3 Lettie M. Wenner, The Environmental Decade in Court (Bloomington: Indiana University Press, 1982).Google Scholar

4 Bruce A. Ackerman & William T. Hassler, Clean Coal/Dirty Air: Or How the Clean Air Act Became a Multibillion-Dollar Bail-Out for High-Sulfur Coal Producers and What Should Be Done About It (New Haven, Conn.: Yale University Press, 1981).Google Scholar

5 The latter phrase comes from John Hart Ely, Democracy and Distrust: A Theory of Judicial Review ch. 5 (Cambridge: Harvard University Press, 1980). For another presentation of this common theme see Chayes, Abram, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976).Google Scholar

6 Stewart, supra note I.Google Scholar

7 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).Google Scholar

8 Frederick R. Anderson, NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act (Washington, D.C.: Resources for the Future, 1973); William H. Rodgers, Jr., Handbook on Environmental Law (St. Paul, Minn.: West Publishing Co., 1977); Erica L. Dolgin & Thomas G. P. Guilbert, eds., Federal Environmental Law (St. Paul, Minn.: West Publishing Co., 1974).Google Scholar

9 Fuller, Lon L., The Forms and Limits of Adjudication, 92 Haw. L. Rev. 353, 394 (1978).Google Scholar

10 Melnick, supra note 2, at ch. 6.Google Scholar

11 Wenner's discussion of the Train case contains other troubling inaccuracies. She states that the First Circuit, unlike the Fifth, had approved the use of variances. This distorts the First Circuit's ruling in NRDC v. EPA, 478 F.2d 875 (1st Cir. 1973), which was explicitly overruled by the Supreme Court. This error reappears in table 31 (p. 149), which reports that the Supreme Court heard no cases from the First Circuit. Earlier, Wenner miscites the Supreme Court decision (p. 201 n.9). In addition, her discussion of the airborne lead cases (Pp. 65–67) states that the First Circuit upheld a decision of a New York district court (New York is in the Second Circuit) and mistakenly implies that the dissent in Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976), took exception to the New York district court ruling. In fact, the dissent objected to a previous unpublished decision of the D.C. Circuit. She also reports (P. 124) that Anaconda v. Ruckelshaus, 352 F. Supp. 697 (D. Colo. 1972), was decided by the district court of Montana. It was actually decided by a federal district court judge in Denver. On page 166 she states that litigation on prevention of significant deterioration (discussed later in this review) “contained no hint of a states' rights issue.” In fact, the crux of the issue was whether the states or the federal government would have authority to establish air quality standards more stringent than those explicitly required by the Clean Air Act. While I do not mean to be nit-picking, it is important to see the mistakes that can creep in when one tries to analyze such a large number of cases.Google Scholar

12 These issues are discussed in Smith, Lowell & Randle, Russell, Comment on “Beyond the New Deal,” 90 Yale L.J. 1398 (1981); and Ackerman, Bruce A. & Hassler, William T., Beyond the New Deal: Reply, 90 Yale L.J. 1412 (1981). Richard Ayres of the National Resources Defense Council and the National Clean Air Coalition disputed their findings in Clean Air Act (Part 2). Hearings before the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, 97th Cong., 1st sess., at 197–99, 206–13 (Washington, D.C.: Government Printing Office, 1982).Google Scholar

13 See supra note 1.Google Scholar

14 For years judges and political scientists have decried the wholesale delegation of authority to administrative agencies. Two leading examples are Henry J. Friendly, The Federal Administrative Agencies: The Need for Better Definition of Federal Standards (Cambridge: Harvard University Press, 1962); and Theodore J. Lowi, The End of Liberalism: Ideology, Policy and the Crisis of Public Authority (New York: W.W. Norton, 1969). These academic writings contributed to the decline of the “New Deal ideal.” Remarkably, many of these writers have failed to notice that policy makers were listening to them. See, e.g., the second edition of Lowi's book, The End of Liberalism: The Second Republic of the United States, esp. 113–26 (2d ed. New York: W.W. Norton, 1979) (Congress mandated “clean air and water to administrators to pursue entirely as they saw fit,” p. 120). One result of their ignoring crucial political changes is that they have never been forced to come to terms with the large costs associated with following their advice. “Better definition of standards” is often praised but seldom subjected to careful analysis. See, e.g., Ely, supra note 5, at 131–34.Google Scholar

15 The D.C. Circuit upheld the new source performance standard after publication of the book. Sierra Club v. Costle, 15 Env't Rep. Cas. (BNA) 2137 (D.C. Cir. 1981). Smith & Randle, supra note 12, indicate that Ackerman and Hassler advocate broad judicial activism. In their reply, Ackerman & Hassler, supra note 12, explain why they believe this claim is unwarranted.Google Scholar

16 344 F. Supp. 253 (D.D.C. 1972).Google Scholar

17 These issues are discussed in the following studies of the Clean Air Act: Peter Navarro, The Politics of Air Pollution. Pub. Interest. Spring 1980, at 36; David Harrison, Jr., & Paul R. Portnoy, Making Ready for the Clean Air Act, Regulation, Mar.-Apr. 1981, at 24; Lester B. Lave & Gilbert S. Ornenn, Clearing the Air: Reforming the Clean Air Act (Washington, D.C.: Brookings Institution, 1981); and Robert W. Crandall, The Use of Environmental Policy to Reduce Economic Growth in the Sun Belt: The Role of Electric Utility Rates, in Michael A. Crew, ed., Regulatory Reform and Public Utilities (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1982).Google Scholar

18 For a more extensive discussion of congressional action on air quality standards and deadlines, see R. Shep Melnick, Deadlines, Common Sense, and Cynicism, Brookings Rev., Fall 1983, at 21.Google Scholar

19 See, e.g., Krier, James E., The Irrational National Air Quality Standards: Macro- and Micro- Mistakes, 22 UCLAL. Rev. 323 (1974); Ann F. Friedlander, ed., Approaches to Controlling Air Pollution (Cambridge: MIT Press, 1978); and Quarles, John, The Transportation Control Plans—Federal Regulation's Collision with Reality, 2 Harv. Envtl. L. Rev. 241 (1977).Google Scholar

20 Some of the standard works are Lindblom, Charles E., The Science of “Muddling Through,” 19 Pub. Ad. Rev. 79 (1959); Aaron Wildavsky, The Politics of the Budgetary Process (3d ed. Boston: Little, Brown & Co., 1979); Jeffrey L. Pressman & Aaron Wildavsky, Implementation (2d ed. Berkeley: University of California Press, 1979); and Martin Meyerson & Edward C. Banfield, Politics, Planning, and the Public Interest: The Case of Public Housing in Chicago (New York: Free Press, 1955).Google Scholar