Substantive challenges have been mounted against areas of technical disagreements with the underlying science and assumption of a model. Courts often consider these challenges in detail. Deference is particularly appropriate if the decision requires significant expertise, such as where the decision involves scientific facts in the Agency's area of expertise, or where the decision is on the frontiers of science or in an area of significant scientific uncertainty. See, for example, Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983):
“[A] reviewing court must remember that the Commission is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.”
The substantive challenges may be described as:
- Challenges to the scientific components of the model
- Challenges to the evaluation process of a model
- Challenges related to the appropriateness of the Agency's application of a model within the larger context
This is also shown in a previous figure outlining the regulation and research processes.
Flow chart of the regulation and research processes. During rule-making, the Agency must provide notice of the regulation for public comment. After a period of review, the comments are addressed and the regulation may then become final. (Click on image for a larger version)