ph14 wrote:What standard of review where it isn't really either a legal interpretation nor a question of whether it was supported by factual evidence. For example, if the rule states that the agency may impose additional measures where "reasonably necessary to ensure adequate levels of safety." The regulated party then challenges the agency action as not being reasonably necessary.
Assume that the additional measures were imposed in a formal adjudication. What standard of review is going to apply?
Stick in something about the difference between law and fact being unclear on a mixed question like this. Then the agency will get Chevron deference, or if you prefer, American Trucking deference. The agency would have gotten deference under Hearst too, but I think it was optional.
Under Chevron step one the Court may look to the purpose, structure, and legislative history, because the text is obviously ambiguous.
Under Chevron step two they would have to show why it was reasonably necessary, and it might fail if there is some purpose in the law that it contradicts. Ohio v. Department of Interior. Yeah, I don't get the difference between purpose in step one and purpose in step two, if there is a difference.
Of course, it would also fail if it were arbitrary/capricious, which is arguably the same as supported by substantial evidence, so I think we've touched em all.