ARTHUR D. LITTLE, INC. vs. COMMISSIONER OF HEALTH AND HOSPITALS OF CAMBRIDGE.
395 Mass. 535
August 1, 1985
Middlesex. April 4, 1985. — August 1, 1985.
Present: HENNESSEY, C.J., LIACOS, ABRAMS, NOLAN, & LYNCH, JJ.
Thе commissioner of health and hospitals of Cambridge, in issuing a regulation pursuant to
A city‘s health regulation issued pursuant to
In an action challenging the validity of a municipal health regulation, the right to a jury trial, provided by
Discussion of the doctrine of Federal preemption as applicable to a municipal health regulation prohibiting the testing, storage, transportation and disposal within a city of certain extremely toxic chemical warfare agents. [545-546]
On appeal from a judgment, upholding the validity of a health regulation of the city of Cambridge prohibiting the testing, storage, transportation and disposal within the city of certain extremely toxic chemical warfare agents, this court concluded that the city‘s regulatory power was not preempted by the United States Constitution‘s grant of war and defense powers to the Federal government, where nothing in the record suggested that the regulation would have more than a speculative and indirect impact on the national defense. [546-548]
Federal legislation authorizing and regulating chemical warfare research did not preempt the power of the city of Cambridge to issue a health regulation prohibiting the testing, storage, transportation and disposal
A contract, authorized by Federal statute, between the United States Department of Defense and a private defense contractor did not have the effect, under the supremacy clause of the United States Constitution, of preempting a health regulation issued by a municipal official of the city in which the contractor intended to carry out its activities under the contract, prohibiting certain of these activities within the city. [551-552]
A party chаllenging the validity of a city‘s health regulation prohibiting the testing, storage, transportation and disposal within the city of certain extremely toxic chemical warfare agents had the burden of demonstrating, on the record, the absence of any conceivable ground on which a court might uphold the regulation. [553] LYNCH, J. dissenting.
Where, in an action challenging the validity of a city‘s health regulation prohibiting the testing, storage, transportation and disposal within the city of certain extremely toxic chemical warfare agents, the record did not show the regulation to be unreasonable, arbitrary, whimsical, or capricious, this court concluded that the issuance of the regulation was a valid exercise of the city‘s power under
A health regulation of the city of Cambridge prohibiting the testing, storage, transportation and disposal within the city of certain extremely toxic chemical warfare agents was a reasonable and appropriate exercise of the city‘s police power and thus did not violate the contract clause of the United States Constitution by impairing the obligation of a contract between the Department of Defense and a private defense contractor which had intended to undertake in Cambridge various research and testing activities prohibited by the regulation. [555-557]
CIVIL ACTION commenced in the Superior Court Department on March 16, 1984.
The case was heard by Robert J. Hallisey, J., on motions for summary judgment.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Thomas B. Bracken (Richard T. Murphy, Jr., with him) for the plaintiff.
Scott P. Lewis (Russell B. Higley, Birge Albright & Edward R. Gallagher with him) for the defendant.
The facts as established by the materials submitted for the purposes of the summary judgment motions are as follows. In June, 1982, and September, 1983, ADL entered into contracts with the United States Department of Defense (DOD), which called for the testing of small quantities of chemical warfare agents. This testing was commenced in the fall of 1983 at ADL‘s Cambridge facility, known as Levins Laboratory. The laboratory was constructed and operated in full accord with all applicable Federal and State standards, including standards issued by the DOD. It is located adjacent to Route 2, and within several hundred feet of a busy commercial area and a residential neighborhood.
On March 13, 1984, the commissioner, pursuant to his authority under
ADL promptly filed a complaint in Superior Court in Middlesex County seeking a review of the commissioner‘s order under
In June, 1984, a consulting firm hired by the city issued its “independent hazard assessment.” This report contained a detailed scientific analysis “of the potential public hazards involved in experiments with chemical warfare agents” at ADL. The report refrained, however, “from characterizing ... the
The parties filed cross-motions for summary judgment in the Superior Court suit filed by ADL to test the validity of the regulation. On February 27, 1985, by order of a Superior Court judge, judgment was entered on behalf of the commissioner, declaring the regulation valid and enforceable. ADL promptly filed a notice of appeal, as well as a motion for a stay pending appeal. The requested stay, first denied by the Superior Court, was granted on March 15, 1985, by a single justice of the Appeals Court. The commissioner then filed a petition for relief from the stay with a single justice of this court, under
I. PROCEDURAL CHALLENGES.
ADL contends that its statutory and constitutional due process rights were violated, because the regulation was issued without a prior hearing, and without findings of fact based on substantial evidence. We disagree. The State Administrative Procedure Act (APA),
First of all, we reject ADL‘s argument that the commissioner is subject to the procedural requirements of the APA. See
Nor do we believe that
Finally, ADL claims that due process principles require that it be given a hearing, and that the regulation be supported by
Although the requirements of the APA are inapplicable to the actions taken by the commissioner, the distinction set forth in that statute between “regulation” and “adjudicatory proceeding” is helpful in situations such as that before us now. See Mullin v. Planning Bd. of Brewster, 17 Mass. App. Ct. 139, 141-142 (1983). An “adjudicatory proceeding” involves a determination of the “legal rights, duties or privileges of specifically named persons.”
We recognize that ADL‘s use of the banned chemicals precipitated the action by the commissioner. Moreover, it is not disputed that ADL alone was conducting activity proscribed by the regulation. But the fact that ADL‘s research alone motivated the ban, and served to “illustrate the general problems, ... could not have the effect of transforming the regulatory endeavor into an adjudicatory one.” Cambridge Elec. Light Co. v. Department of Pub. Utils., supra at 487. In a similar situation this court has upheld a § 143 regulation prohibiting the painting of trucks within the city limits. Revere v. Blaustein, 320 Mass. 81, 83 (1946). We noted that “no constitutional right of the defendant was impaired even if he were the only one affected by the regulatory action of the board.” Id. Similarly, in Milton v. Donnelly, 306 Mass. 451, 460 (1940), we recognized that even “if the only billboard that could be affected by the enforcement of the by-law is that of the respondent, that circumstance alone would not render the by-law invalid.” See Boston Gas Co. v. Department of Pub. Utils., 387 Mass. 531, 536-537 (1982). Massachusetts Gen. Hosp. v. Belmont, 233 Mass. 190, 203-204 (1919).
Because we conclude that the commissioner‘s action was rule making, and not adjudication, ADL‘s contention that it is entitled to findings of fact, and a hearing, before adoption of the regulation is meritless. It is wеll established that “an agency is not ... obliged to provide a statement of the reasons which support its adoption of a regulation.” Borden, Inc. v. Commissioner of Pub. Health, supra at 723 n.9. Cambridge Elec. Light Co. v. Department of Pub. Utils., supra at 490-491. Moreover, “[a]ny constitutional claim to a trial type hearing fails if the proceeding was ... regulatory or legislative or political. ... A regulation, like legislation, often increases costs or diminshes business expectations or even proprietary rights, but neither demands a prior confrontation resembling a lawsuit.” Id. at 488. See also American Grain Prods. Processing Inst. v. Department of Pub. Health, 392 Mass. 309, 323
ADL further contends that it was entitled to a hearing and findings before issuance of the order prohibiting further use of the specified chemicals. We disagree. General Laws
ADL‘s final procedural challenge to the judgment below is premised on the ground that the trial judge wrongly deprived it of the right to a jury trial under
II. SUBSTANTIVE CHALLENGES.
A. Preemption.
ADL contends that the regulation is inconsistent with the Federal Constitution and Federal statutes, and thus that it is invalid under the supremacy clause of the United States Constitution.
Secondly, this court, and the United States Supreme Court, have been particularly reluctant to overturn State laws which are “deeply rooted in local feeling and responsibility.” Travelers I, supra at 611, quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 243-244 (1959). Massachusetts Elec. Co. v. Massachusetts Comm‘n Against Discrimination, 375 Mass. 160, 174 (1978). This principle applies with special force to laws designed to protect the public health and welfare, a subject of “particular, immediate, and perpetual concern” to any municipality. 6 E. McQuillin, Municipal Corporations § 24.01 (3d ed. rev. 1980). In fact, according to an early decision of this court, Vandine, petitioner, 6 Pick. 187, 191 (1828), “[t]he great object of the city is to preserve the health of the inhabitants.” Accordingly, municipal health and safety regulations, such as that at issue here, carry a heavy presumption of validity, and are only rarely preempted by Federal law. Travelers I, supra at 612. See Malone v. White Motor Corp., 435 U.S. 497, 513 n.13 (1978). “The States traditionally have had great latitude under their police powers to legislate as ‘to the protection of the lives, limbs, health, comfort, and quiet of all pеrsons.‘” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985), quoting Slaughter-House Cases, 16 Wall. (83 U.S.) 36, 62 (1873). Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 442-443 (1960).
ADL argues that any regulation which interferes with the conduct of a DOD research program is preempted by the Constitution‘s grant of war and defense powers to the Federal government. For example, the Constitution provides Congress with the power to “provide for the common Defence,”
First of all, we reject ADL‘s contention that the regulation at issue impermissibly interfеres with an integral part of an important national defense program. Nothing in the record suggests that the densely populated city of Cambridge is somehow uniquely suited to research on chemical warfare agents. Banning research on these chemicals within that city hardly requires the abandonment of the DOD‘s chemical warfare program. The DOD remains free to conduct its research elsewhere. Accordingly, the city of Cambridge has not attempted to dictate the scope of permissible strategic research, or otherwise to interfere with congressional power to “provide for the common Defence.” Instead, it has merely taken the position that research on certain chemical warfare agents must be conducted, if at all, outside the city limits.
Nor are we persuaded by what the commissioner has termed “ADL‘s domestic domino theory.” Even if the Cambridge regulation alone does not substantially interfere with national defense, ADL asserts that other municipalities may enact similar prohibitions, and thus seriously hinder the DOD‘s ability to study chemical warfare agents. We believe that the scenario posited by ADL is far too “hypothetical,” Rice v. Norman Wil- liams Co., 458 U.S. 654, 659 (1982), to warrant preemption. According to the record only one other city has even considered the problem, and there is no indication that it will respond as the city of Cambridge has. Moreover, as the judge below recognized, even if a significant number of municipalities did enact such regulations, the DOD would always be free to conduct such research on its military bases. See McQueary v. Laird, 449 F.2d 608, 612 (10th Cir. 1971) (“Federal Government has traditionally exercised unfettered control with respect to internal management and operation of federal military establishments“).10
ADL next contends that the regulation at issue is preempted by Federal legislation authorizing and regulating chemical warfare research.11 State law, including municipal regulations, can be preempted by an act of Congress if the State law ““conflicts with federal law or would frustrate the federal scheme, or [if] the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States.“” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724,
ADL bases its preemption argument on several Federal statutes which we briefly summarize. In
Finally, we do not see any indication in these statutes that Congress “sought to occupy the field” of chemical warfare regulation “to the exclusion of the States.” Metropolitan Life Ins. Co. v. Massachusetts, supra at 2393. Only a few of the Federal statutory provisions cited by ADL even apply to parties other than the Secretary of Defense. See
We recognize that Congress has plenary authority in exercising its war and defense powers. See Ullmann v. United States, 350 U.S. 422, 436 (1956); United States v. Onslow County Bd. of Educ., 728 F.2d 628, 640-641 (4th Cir. 1984); St. John‘s River Shipbuilding Co. v. Adams, 164 F.2d 1012, 1015 (5th Cir. 1947). Nonetheless, it is also well established that a State court, before invalidating State laws, should be “thoroughly convinced” of the arguments in favor of preemption, “lest it discover later that it has retreated where the Federal government will not advance and has therefore been derelict in its duty.” Commonwealth v. McHugh, 326 Mass. 249, 265-266 (1950). In the absence of any congressional action which clearly conflicts with the regulation at issue, and in the absence of congressional intent to occupy the field, we conclude that the regulation is not preempted by Federal legislation.
Finally, ADL suggests that a contract between the DOD and a private defense contractor, authorized by Federal statutes, preempts inconsistent local regulations. We agree that ADL‘s obligations under its contracts with the DOD, and under the regulation, are flatly inconsistent.13 Compliance with both is
B. Arbitrariness.
General Laws
Our reluctance to intrude too deeply into the administrative process is also grounded firmly on the principle that “the respective roles of the agency and the reviewing court should be
On the record before us, the plaintiff cannot meet its burden of showing the absence of any conceivable ground for the commissioner‘s action. Both the SAC and an independent consultant recognized that a release of hazardous chemical warfare agents from Levins Laboratory was either “unlikely” or “very unlikely,” “but not impossible” (emphasis added). See notes 3 and 4, supra. The study conducted by the SAC concluded that the risks associated with the ADL research were “unacceptable.” See note 4, supra. The other study refrained from making any such conclusion, asserting that “[p]erspective on what is acceptable involves comparison with other risks people are exposed to as well as consideration of other factors such as whether the risks are voluntary or involuntary and what benefits accompany the risk.” See note 3, supra. From these reports, the conclusion is inescapable that the necessity for the regulation is, at the very least, “fairly debatable.” Borden, Inc. v. Commissioner of Pub. Health, supra at 722.
ADL notes that it made a “commitment” to use only a limited quantity of the chemicals at a single time, and thus argues that the SAC report is “wildly inaccurate” for failure to adjust its risk assessment accordingly. Even if ADL‘s “commitment” diminishes the risk posed by the research conducted at the Levins Laboratory, it does not affect other research institutions in Cambridge which may have had occasion to use the banned chemicals. As the judge below found, “[t]he regulation is aimed at the chemicals themselves and not merely at the ADL facility.” Once the commissioner determined that the use of these chemicals, under some conceivable circumstances, would pose an unreasonаble risk, he was under no duty to consider the
C. Contract clause. ADL next challenges the regulation on the ground that it violates the contract clause,
“Literаlism in the construction of the contract clause . . . would make it destructive of the public interest by depriving the State of its prerogative of self-protection.” Allied Structural Steel Co. v. Spannaus, supra at 240, quoting W.B. Worthen Co. v. Thomas, 292 U.S. 426, 433 (1934). Consequently, a regulation “does not violate the Contract Clause simply because it has the effect of restricting, or even barring altogether, the performance of duties created by contracts entered into prior
to its enactment” (emphasis added). Exxon Corp. v. Eagerton, supra at 190. Instead, in reviewing regulations which substantially impair contractual obligations, we examine “whether the adjustment of ‘the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the (regulation‘s)] adoption.‘” Energy Reserves Group, Inc. v. Kansas Power & Light, supra at 412, quoting United States Trust Co. v. New Jersey, 431 U.S. 1, 22 (1977). The impairment need not be justified on the basis of “an emergency or temporary situation.” Energy Reserves Group, Inc. v. Kansas Power & Light, supra. Instead, any “significant and legitimate public purpose” will suffice. Id. at 411.
On the basis of this authority, we conclude that the commissioner‘s action should be evaluated, under the contract clause, against essentially the same standard of reasonableness which we applied to ADL‘s challenge to the regulation as arbitrary or capricious. See Borden, Inc. v. Commissioner of Pub. Health, supra at 737-738. See also Travelers I, supra at 616. The standard is not a stringent one. “[U]nless the State itself is a contracting party,” Energy Reserves Group, Inc. v. Kansas Power & Light, supra 412, we will defer to legislative or administrative judgment as to the wisdom of any particular measure. Any other rule would invite parties to enter into contracts to “estop the legislature from enacting laws intended for the public good.” Manigault v. Springs, 199 U.S. 473, 480 (1905). Exxon Corp. v. Eagerton, supra at 190-191 & nn.11 & 12.
For the reasons set forth in our discussion of ADL‘s challenge to the regulation on the ground it is arbitrary or capricious, we conclude that the action taken by the commissioner constitutes a reasonable, and thus permissible, impairment of ADL‘s contractual obligations to the DOD. This is not a regulation aimed at “providing a benefit to special interests.” Energy Reserves Group, Inc. v. Kansas Power & Light, supra at 412. Instead, the regulation imposes “a generally applicable rule of conduct,” Exxon Corp. v. Eagerton, supra at 192, designed to protect all Cambridge citizens from what the commissioner
III. CONCLUSION.
We affirm the judgment of the Superior Court declaring the commissioner‘s regulation valid and enforceable. The stay of judgment pending appeal, granted in the Appeals Court, is vacated herewith.
So ordered.
LYNCH, J. (dissenting). In upholding the action of the commissioner in this case, the majority reaffirms the appliсability of the rational basis test to administrative action.1 As a result, if under any conceivable set of circumstances, no matter how remote, the necessity for the regulation is fairly debatable, the “inescapable” conclusion is that the regulation must be upheld. The majority reasons that any other result would violate the principle of separation of powers, and would fail to give due deference to the expertise of administrative bodies. Ante at 553-554.
It is my view that the rational basis test as traditionally applied in this Commonwealth rests upon the twin infirmities of misapplied precedent and illogic. It therefore should no longer be used as the litmus for judicial scrutiny of administrative regulations. That the regulation in this case passes scrutiny under the rational basis test illustrates beyond dispute the ineffectiveness of that test as a limitation on the abuse of power by administrative bodies. Therefore, even assuming that the majority has correctly characterized the commissioner‘s action
1. Flaws of the rational basis test. The rational basis test arose out of a recognition of the principle that “acts, passed by the legislature, according to the forms prescribed in the Constitution, are founded in authority given by the people to that department.” Portland Bank v. Apthorp, 12 Mass. 252, 253 (1815). Popularly elected representatives are accountable to the electorate, which provides a check on the arbitrary exercise of legislative power. For that reason, otherwise constitutional legislative action is not normally subject to intense judicial scrutiny. Indeed, it is our duty “to give effect to the will of the people as expressed in the statute by their representative body. It is in this way . . . that the doctrine of separation of powers is given meaning.” Shell Oil Co. v. Revere, 383 Mass. 682, 687 (1981), quoting Commonwealth v. Leis, 355 Mass. 189, 202 (1969) (Kirk, J., concurring). See Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, 379 Mass. 368, 372 (1979).
Simply stated, “an agency is not a legislature.” State Farm Mut. Auto. Ins. Co. v. Department of Transp., 680 F.2d 206, 221 (D.C. Cir. 1982), vacated on other grounds, Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). It is therefore “incorrect” to say that regulations have the “same legal force as do statutes.” 1 F. Cooper, State Administrative Law 264 (1965). See 1 K.C. Davis, supra § 6.13, at 509. Instead, we should recognize that administrative bodies “have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking. . . . [They] have been called quasi-legislative, quasi-executive or quasi-judicial, as the
It will not do to say only that the Legislature, comprised of directly elected representatives, has delegated its power to administrative bodies and theoretically provides some check on administrative abuse. First, administrative bodies are still one step removed from the electorate, the source of legislative power and the most potent check on its possible abuse. See American Grain Prods. Processing Inst. v. Department of Pub. Health, supra at 333 (Lynch, J., dissenting) (“administrative officials are only tangentially responsive to the will of the people“). Moreover, “policymaking by a small group of political appointees may be objectionally nonrepresentative,” especially when no hearing and no formal opportunity to comment on proposed regulations takes place. L. Jaffe, Judicial Control of Administrative Action 566 (1965). Second, the plethora of State and local administrative bodies and the competing demands of other pressing legislation prevent effective legislative oversight. The Legislature does not have the opportunity “to examine more than an infinitesimal proportion of . . . regulations.” DeLong, Informal Rulemaking and the Integration of Law and Policy, 65 Va. L. Rev. 257, 281 (1979). See Bruff, Legislative Formality, Administrative Rationality, 63 Tex. L. Rev. 207, 231-232 (1984). For these reasons, other courts have recognized that “agencies do not have quite the prerogative of obscurantism reserved to legislatures.” United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977). Indeed, the Supreme Court has recently stated that it does “not view as equivalent the presumption of constitutionality afforded
With the explosion of regulatory activity in the past twenty years, administrative bodies have become more independent, exercising more power at the same time that courts, at least in this Commonwealth, continued to adhere to only the most casual form of review. This situation has led to a perception that “agencies are out of control.” Breyer, Reforming Regulation, 59 Tul. L. Rev. 4, 6 (1984). It has added fuel to “the growing popular disenchantment with the pervasive bureaucratization of economic and social life.” Gellhorn & Robinson, Rulemaking “Due Process“: An Inconclusive Dialogue, 48 U. Chi. L. Rev. 201, 260 (1981). These circumstances have called into doubt the “comfortable assumption that political remedies may constitute an effective check” on administrative power, at the same time that it has become evident that administrative bodies are political, not neutral and disinterested, parties. DeLong, supra at 278, 281.
Despite these formidable practical and theoretical problems generated by assigning equivalence to statutes and regulations, this court has maintained its adherence to Druzik. Generally, the court has stated this theory of equivalence (upon which the rational basis test wholly rests) as an accepted fact, as though through simple repetition it could become so. See, e.g., American Grain Prods. Processing Inst. v. Department of Pub. Health, supra at 329; White Dove, Inc. v. Director of the Div. of Marine Fisheries, 380 Mass. 471, 477 (1980); Greenleaf Fin. Co. v. Small Loans Regulatory Bd., 377 Mass. 282, 293-294 (1979); Colella v. Stаte Racing Comm‘n, 360 Mass. 152, 155-156 (1971). Alternatively, the court has relied on justifications that may support some degree of judicial deference, but in no way command the application of the rational basis test. For example, the court has justified the rational basis
2. A proposed standard. In developing a more appropriate standard of review of regulatory action, it is instructive to consider how the Federal courts have approached the same problem. Those courts, like the majority in this case, apply an “arbitrary or capricious” standard. Howеver, Federal application of the arbitrary or capricious test bears little similarity to the test applied by the majority. From the lenient standard of Pacific States Box, which the majority still follows, Federal courts have evolved a much more substantial inquiry, subjecting regulatory action to “a thorough, probing, in-depth review.” Citizens to Preserve Overton Park, Inc. v. Volpe, supra at 415.5 See Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., supra at 43.
This so called “hard look” standard of review “compares the agency‘s stated rationale for a decision with supporting or opposing data and policy views gathered by the agency as the ‘administrative record’ for judicial review. The court identifies the agency‘s value choices and checks their consistency with the factual basis asserted for them, the agency‘s other present or past policies, and the governing statute.” Bruff, supra at 238. Similarly, Federal courts will “not supply a reasoned basis for the agency‘s action that the agency itself has not given” and actually relied on. Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., supra at 43 & 50. This is in effect a rejection of the rational basis test as applied in this Commonwealth. That test, unlike the Federal test, validates any regulation so long as the imagination of some administrator, lawyer, or judge is fertile enough to envision a conceivable,
The elements of the Federal test “do not significantly differ for purposes of judicial review of rulemaking” from the “substantial evidence” test with which this court already has developed familiarity. 1 K.C. Davis, Administrative Law § 6.6, at 468 (2d ed. 1978). See DeLong, supra at 287-288. See also Associated Indus. of N.Y. State, Inc. v. United States Dep‘t of Labor, 487 F.2d 342, 349-350 (2d Cir. 1973). Therefore, I would apply the substantial evidence test to review regulatory action.6 It is neither radical nor unreasonable to require merely that administrative bodies base their regulations on “such evidence as a reasonable mind might accept as adequate to support a conclusion” (
3. The action in this case. It is unmistakably clear that the commissioner‘s action is not supported by substantial evi-
Putting aside this consideration, the studies themselves also fail to provide substantial evidence for his action. First, these studies focused exclusively on ADL‘s research to establish the threat to public health involved. There was no consideration of, or reliance on, any other realistic scenarios concerning the possible use of the banned chemicals in Cambridge by the small number of other foreseeable users. Second, the conclusions of those studies are flawed on their face. They do not consider ADL‘s commitment to use significantly smaller amounts of the chemicals than the studies hypothesized. Thus, the studies are virtually useless in assessing even the “worst case” accident scenarios. When confronted with this fact, the commissioner has simply asserted that he did not have to consider ADL‘s commitment, since there was no guaranty that other users would make the same commitment. But the studies did not exаmine the hazards that might be posed by other users; they addressed themselves solely to ADL. It is neither reasonable nor rational for the commissioner to rely on the studies to support his action, but to deflect any criticism of the results
Nor was there sufficient information from which the commissioner could have made an informed judgment about the acceptability of the risk of harm from ADL‘s research. In general, “[t]he concept of overall risk incorporates the significance of possible adverse consequences discounted by the improbability of their occurrence.” City of N.Y. v. United States Dep‘t of Transp., 715 F.2d 732, 738 (2d Cir. 1983), cert. denied, 465 U.S. 1055 (1984). Quite apart from the commissioner‘s faulty knowledge about possible adverse consequences, he had no reasonable idea of the possibility that they would occur. Neither study considered the probability of a harmful accident except in the most general terms. While I would not require mathematical precision in making this assessment, something more is required than unsupported statements that it is “very unlikely” or “unlikely but not impossible.” The quoted assessments offer the commissioner no support, since virtually anything could be considered by a reasonable person to be “not impossible.”
The majority is correct in stating that we must give deference to the commissioner‘s expertise. Ante at 553-554. But “[i]n judicial review, the court must evaluate the relevance and weight of expertness” (emphasis in original). L. Jaffe, supra at 579. Unless “the requirements for administrative action [are] strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion” (emphasis in original). Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., supra at 48, quoting New York v. United States, 342 U.S. 882, 884 (1951) (Douglas, J., dissenting). It does no violence to the principles of deference to conclude that the commissioner lacked substantial evidence to bring his expertise into play in this situation.
4. Conclusion. The standard of review I have advanced would not unduly restrict rule making, nor would it place this
It is worth bearing in mind that “the knowledge of an administrative agency is rarely complete, an administrative agency is not ordinarily a representative body, its deliberаtions are not usually conducted in public, and its members are not subject to direct political controls in the same way as are legislators.” Bonfield, The Iowa Administrative Procedure Act: Background, Construction, Applicability, Public Access to Agency Law, the Rulemaking Process, 60 Iowa L. Rev. 731, 845 (1975). Or as one noted writer has said of independent agencies: “They have been founded on a basically undemocratic concept of the political process and have helped perpetuate naive notions about regulation, . . . the virtues of group decision and the use of expertness.” M. Bernstein, Regulating Business By Independent Commission 294 (1955). Because of these considerations, we should abandon the principle that the court “should cast about to discover” any ground on which to uphold administrative action. Cotter v. Chelsea, 329 Mass. 314, 318 (1952). For “[w]hen a court declines to scrutinize (or even assumes the existence of) supporting facts, ignores the presence of alternatives, and requires nothing more than minimally rational explanation, almost any outcome can pass muster.” Garland, Deregulation and Judicial Review, 98 Harv. L. Rev. 507, 556 (1985). The result here is, therefore, “one more step toward agency nonaccountability and carte blanche.” American Grain Prods. Processing Inst. v. Department of Pub. Health, supra at 332 (Lynch, J., dissenting). At some point this process must stop.
Notes
In an affidavit signed shortly after the regulation was issued, the commissioner summarized how some of the banned substances are characterized in Goodman & Gilman, The Pharmacological Basis of Therapeutics (6th ed.). “Sarin and Soman are listed as extremely toxic ‘nerve gases’ ... [and] are among the most potent synthetic toxic agents known. They are lethal to laboratory animals in submilligram doses .... Mustard refers to sulphur and nitrogen mustard cоmpounds ... [which are] powerful local vesicants (blister agent[s]) .... Lewisite is listed as an arsenical war gas.” Although the regulation is couched in general terms, ADL is the only present or likely user of the banned chemicals, and the scientific studies allegedly supporting the regulation focus exclusively on the risks associated with ADL‘s research, and not on other problems that might arise if the chemicals were used in the future by some other business or individual. I also note that the regulation essentially renders wasted approximately $1 million spent by ADL to construct, with the knowledge and approval of the city of Cambridge, a special laboratory to conduct this research.