The control of federal regulatory agencies by the STF as an appellate instance: an empirical study

Abstract

This paper is the result of a study conducted under FGV Direito Rio's Regulation in Numbers Project, aiming to understand if and how the Federal Supreme Court (STF) exercises its control over federal regulatory agencies at the appellate level. To this end, all 2,896 cases involving such agencies decided by the STF at the appellate level between 1996 and 2017 were analyzed both quantitatively and qualitatively. A first finding is that the STF rarely appreciates the merit of legal disputes involving regulatory agencies at the appellate level (2.8% of appeals), following the Court's defensive case law. A second finding is more relevant but less notorious: in the few cases in which the merit of the constitutional controversy is addressed by the Court (85), STF was deferential, joining the agencies' opinions in 88.7% of cases. This pro-agency stance holds in the most obvious scenario, in which the agency is the appealed party, and in the most surprising scenario in which the agency is the party that appeals (85.2%). The study also describes and analyzes the issues that overcame STF's defensive case law, what can contribute to better understanding STF's opinion on which issues have a constitutional status among the agencies' attributions.