Adducing Evidence outside the Administrative Record during Judicial Review: A Review of Federal Environmental Practice since Overton Park
When defending the decisions and actions of federal agencies, the Land & Natural Resources Division of the United States Department of Justice (“L&NR”) is presently following the practice of seeking to limit the evidence adduced at hearings and trials and also to limit discovery to the administrative record. Thus, L&NR argued recently in support of a motion opposing discovery:
“The law is well established that judicial review of an administrative determination is confined to the administrative record. Additional evidence to supplement an administrative record is generally not taken in the district court. Rather, if the district court concludes that the administrative record does not sustain the action, the remedy is not to consider additional evidence but instead to remand the matter for reconsideration by the agency. [citations omitted]”1
The foundation of L&NR's practice, which often leads to success,2 are two Supreme Court cases: Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (hereinafter cited simply as “Overton Park”) and Camp v. Pitts, 411 U.S. 138 (1973).
The government's reliance on these two cases is well placed. They place severe limits on what evidence outside the administrative record, if any, that may be considered by a lower court when reviewing an agency action or decision. A review of the cases, however, r
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