JUDICIAL-REVIEW OF THE ADMINISTRATIVE RECORD IN NEPA LITIGATION

Judicial review of administrative decisionmaking must strike a balance between allowing agencies to have adequate power to perform their duties and ensuring that agencies follow the law. In deference to administrative autonomy, courts have adopted a ''record rule,'' refusing to consider evidence that was not first presented to the agency. In this Comment, the author argues for an exception to the record rule when courts review agency action under the National Environmental Policy Act (NEPA). NEPA requires all federal agencies to analyze the environmental impacts of their projects, but their failure to prepare a complete analysis is often not apparent from the record. The author also argues that the policies underlying the record rule-including the presumption of administrative expertise, concerns about judicial intrusion into agency independence, reliance on public input to ensure an adequate record, and worries about plaintiff sandbagging-are less compelling in the context of NEPA litigation. Furthermore, the agency's duty to gather relevant information should be independent of the degree of outsider participation in the administrative process, especially given the limited resources of the public interest group plaintiffs that generally bring NEPA suits. Lastly, the author briefly examines whether the principles behind the NEPA exception may be extended to other areas of judicial review of administrative actions.