tions, as I would expect he would. I will be much instructed by what he said. Judge BAZELON. I didn't take the fifth. [Laughter.] Senator JAVITS. You have heard it, but you didn't take it. I just want to pay my respects to a very dear and very old friend, Mr. Chairman. Senator PERCY. A young friend of long standing. Senator JAVITS. He has served our country and its judicial system fantastically well, and he is still going to serve, although characteristically he has made room for another judge to begin to try to fit in those very big shoes. Thank you, Mr. Chairman. Judge BAZELON. Thank you. Chairman RIBICOFF. Thank you very much. Judge Bazelon, your testimony was pertinent and valuable. We are most appreciative, all of us, that you came here today. Judge BAZELON. Thank you very much. It was a pleasure to be here before the three of you. I felt very much at home. Thanks. Chairman RIBICOFF. You are at home. [The prepared statement of Judge Bazelon with responses to Senator Ribicoff's questions follow:] STATEMENT OF DAVID L. BAZELON, CIRCUIT JUDGE Before the COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE MAY 23, 1979 Good morning. My name is David L. Bazelon, and I am a Circuit Judge on the United States Court of Appeals for the District of Columbia Circuit. I would like to thank the Committee for the opportunity to testify today. Perhaps my most important qualification to comment on the proposed legislation is the fact that my tenure on the D.C. Circuit has spanned almost the entire history of the Administrative Procedure Act. The APA was enacted in 1946, and I became a judge of the U.S. Court of Appeals in 1949. While I would like to think that the APA and I have aged well together, I realize that we both could stand a bit of improvement, and that is why I have come today to offer a few thoughts on reforming the regulatory process. 2. legislation. I will not offer a section-by-section analysis of the Instead, I propose to discuss from my own perspective as a judge the transformation of administrative law in the thirty-three years since the enactment of the APA. I will then explore briefly the implications of this evolution for reforming administrative procedure. The APA was crafted at a time when most administrative activity centered around economic regulation in the "big seven" independent regulatory agencies (CAB, FCC, FPC, FTC, ICC, NLRB, SEC). These agencies' mission was to assure equitable allocation of the economic pie to compensate for perceived imperfections of the marketplace. Since the APA was enacted, the "fourth branch" of government has grown explosively. Most of this growth has occurred through the creation of new agencies, such as NRC, OSHA, CPSC, FDA and EPA, that are concerned with human health and safety. The stakes in an agency proceeding are no longer limited to issues such as the appropriate rate of return for a utility company. Now agencies are asked to make decisions that may cost or save thousands of lives over one or even several generations. At the extreme, decisions before agencies such as NRC or EPA may ultimately determine the fate of mankind. The issues facing the new agencies differ in other important respects as well. The classic model of regulation involved conflict among a small number of readily identifiable interests. The new administrative law, by contrast, is typically polycentric (to use Prof. Lon Fuller's expression). These controversies are characterized by a much wider variety of interests and values, which the agency must weigh and reconcile in reaching its decision. Perhaps even more important is the change in the nature of the information that forms the core of the new administrative law. The financial and economic data relevant to decisions by agencies such as the ICC have always been relatively intelligible even to a layman willing to study the issues. By contrast, problems such as the technological possibilities for storing hazardous nuclear wastes present scientific questions at or beyond the frontiers of current knowledge. These complex issues are often comprehensible only to a handful of highly trained specialists. This development -- the change from economic to health and safety regulation, accompanied by a widening range of value conflicts and increasingly complex technical issues has profound implications for the role of Congress, the courts, and - 1/ The term "polycentric" derives from Professor Fuller's unpublished paper The Forms and Limits of Adjudication. It is discussed in Boyer, Alternatives to Administrative Trial-Type Hearings for Resolving Complex Scientific, Economic and Social Issues, 71 Mich. L. Rev. 111, 116-20 (1972). 4. 2/ especially the agencies themselves. It has been my view that this new administrative law is particularly ill-suited to the substantive judicial review that characterizes review of, for example, FCC decisions. By the same token, Congress, too, is hard-pressed to legislate or oversee many of the complex individual health and safety determinations that agencies must make. To a large extent, specific agency decisions are likely to escape further oversight by other governmental institutions. As a result, the agency decisional process takes on a crucial significance unparalleled in prior administrative law. It thus becomes all the more important for the public to have confidence in what the agency does. Such confidence, I submit, must spring in large measure from the fairness and thoroughness of the agency's decisional processes. The most crucial element of strengthening the administrative process, in my view, is to assure that the agency has before it all the relevant information. The stakes in many administrative proceedings are simply too high to permit anything short of a full inquiry. Agencies must not content themselves with passively accepting the information provided by the parties. They must affirmatively stimulate the participation of knowledgeable 2/ See Ethyl Corp. v. EPA, 541 F.2d 1, 66 (D.C.Cir. 1976) (Bazelon, C.J., concurring) (en banc). |