When complex facts threaten court reviews: Litigation over navigation projects

The capacity of the U.S. courts to provide effective review of cases involving complex scientific and economic analysis is declining. Rational action in such cases requires three things: a general rule by which to judge the appropriateness of actual or proposed actions; a set of facts sufficient for determining the consistency of the action with the general rule; and an independent review institution with power to enforce actions under the rule. Where the issues are complex, however, government agencies increasingly have tended to cloak their decisions in needlessly technical formulations and to buttress their presentations in masses of impenetrable data. Courts tend to avoid involvement in the complexities, resting instead on a presumption that government reports are accurate and government actions appropriate; this is a tendency we label “judicial math block.” Two cases taken from the complex area of public navigation investment illustrate the problem.