CHAPTER 11 WHAT CAN BE REVIEWED, WHERE TO FILE, AND WHAT THE PROCESS IS: JURISDICTIONAL PROVISIONS OF THE APA AND OTHER STATUTES

• Jurisdiction: United States

Challenging and Defending Federal Natural Resource Agency Decisions
(Sep 2016)
CHAPTER 11
WHAT CAN BE REVIEWED, WHERE TO FILE, AND WHAT THE PROCESS IS: JURISDICTIONAL PROVISIONS OF THE APA AND OTHER STATUTES
Fred R. Wagner
Principal
Beveridge & Diamond PC ¹
Washington, DC

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FRED R. WAGNER is a Principal and Chair of Beveridge & Diamond PC's Natural Resources and Project Development Practice Group, in Washington, DC. He re-joined the Firm in 2014 after serving as Chief Counsel of the Federal Highway Administration (FHWA) since 2011. As Chief Counsel, Fred directed all of FHWA's programmatic and operational legal work, including compliance, ethics, and business law functions pertaining to such areas as administration of FHWA grants and contracts, records management and disclosure, and personnel management. Fred assisted U.S. Department of Transportation leadership on the highest priority legislative and regulatory issues, and partnered with the DOJ in the defense of litigation challenging transportation projects of national significance. He managed all legal matters concerning the $40 billion Federal-Aid Highway program, including environmental and natural resources issues for highway and multi-modal transportation projects across the U.S. In addition to his tenure at FHWA, Fred also served as a Trial Attorney in the Environment Division of the DOJ and as a Special Assistant U.S. Attorney in the Misdemeanor Trial Section of the U.S. Attorney's Office for the District of Columbia.

Introduction

How exactly can Federal courts operate as a backstop against adverse and unlawful agency actions? Understanding the what, when, where, and how of the judicial review process is essential to minimizing the risk of forfeiting valuable rights and maximizing opportunities to bring a successful challenge or defense. And while for years these concepts have been fairly well-settled, recent challenges to major environmental rules and interim court decisions are forcing a reexamination of procedural strategies to optimize outcomes.

This article begins with the Administrative Procedure Act ("APA"), laying out the basic framework for judicial review. We then look at several environmental and natural resources statutes that override the APA's standard terms and provide more specificity for court proceedings in particular contexts. We address the specifics of what can be challenged, when a challenge must be filed, and which court (or courts) may entertain a challenge. We also focus on courts' occasionally different treatment of merits and remedies. To illustrate these concepts and emerging strategic questions, we highlight some key pending environmental cases. Finale for convenience and reference, the Appendix compiles the statutory provisions discussed herein.

This article is not meant to be an exhaustive survey of all judicial review provisions that might apply in any given case. This discussion of judicial review of agency decisions does not include citizen suit provisions seeking enforcement against parties (which may include a federal agency beyond the agency charged with administering the statute) alleged to be in violation of substantive environmental requirements or prohibitions. We also do not duplicate discussions of important related topics expansively addressed in other papers for this Special Institute, including what constitutes a "final" agency action, threshold barriers to judicial review, administrative appeal procedures, standards of review, available remedies, and how to build the administrative record. Affected parties should consult counsel to determine and ensure adherence to applicable rules and protect their rights.

I. Judicial Review Process in General

Judicial review is a process governed by specific rules of procedure and substantive standards. These rules and standards decide, among other things, who can seek judicial review, what can be reviewed, when it can be done, and the relief available. The primary law dictating this process is the judicial review chapter of the Administrative Procedure Act, 5 U.S.C. §§ 701 -706. Under that chapter, parties that have suffered a "legal wrong because of agency action" or

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that have been "adversely affected or aggrieved by agency action within the meaning of a relevant statute" may challenge the action in question.²

When a court is able to hear a challenge to final agency action (or other actions made reviewable by statute), its review is limited. The APA enumerates an exclusive list of grounds upon which a reviewing court may alter an agency action or omission, reflective of the deference typically afforded to agencies. Specifically, courts may:

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to [an evidentiary hearing or trial under the APA] or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

5 U.S.C. § 706. As discussed below, when requested by a party to maintain the status quo through a preliminary injunction or stay of an agency action, the court can elect to render an early assessment of likelihood of success on the merits as a key factor for preliminary relief. On the ultimate merits of the case, the court must decide whether to vacate, permanently enjoin, or uphold agency action depending on the circumstances.

Because the evidence available during judicial review is usually limited to the administrative record underlying the agency decision, it is often the case that there are no disputed material facts during judicial review. The government files the administrative record with the court. Ideally, the parties will have cooperatively conferred in advance regarding the contents of the administrative record; in certain instances, however, motions practice can occur

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to challenge the adequacy of or to supplement the administrative record.

Because no factual discovery is necessary in APA challenges, they can be decided on summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Typically, after filing of the complaint and the answer, courts will expect the parties to negotiate a schedule for summary judgment motions (typically four or six total briefs), as well as oral argument to the extent consistent with local court rules. The parties usually then file a proposed order with the court to enter this schedule and fulfill any other local procedural requirements for new cases.

Another notable characteristic of judicial review is ability of courts to bifurcate the litigation into a liability phase and a remedy phase. That is, the court may hear the case on the merits of liability before hearing any arguments on the appropriate remedy.³ This allows for the parties to avoid the added expenses of briefing remedies before learning how the court will rule. It also creates further opportunities for the parties to reach an agreeable settlement as the case progresses (though such negotiated resolutions outside the formal rulemaking process have also proven controversial in several instances).

II. What Can be Reviewed

A. APA & Final Agency Action

Under the APA, "[a]gency action made reviewable by statute" and "final agency action for which there is no other adequate remedy in a court" are subject to judicial review.⁴ In the subsections below, we provide an overview of relevant statutes that specify particular reviewable actions. The catch-all "final agency action" phrase is not defined by the APA but instead has been left to judicial interpretation, as discussed at length in a separate Special Institute paper. In sum, the U.S. Supreme Court has held that "two conditions must be satisfied for agency action to be 'final'":

First, the action must mark the "consummation" of the agency's decisionmaking process--it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow,"

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted). Traditionally reviewable actions under the APA regardless of context include rulemakings, denials of formal petitions for rulemaking, and enforcement actions and administrative penalties. Notably, policy statements and agency guidance can also be final agency actions if they purport to bind the regulated community with the force of law.⁵ Furthermore, a party generally must exhaust all

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administrative remedies before turning to the courts, as explained in another paper.

In addition to the general types of actions above, some examples of final agency actions commonly arise in the context of natural resources statutes and are challengeable under the APA or those statutes.⁶ These include but are not limited to:

Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1388

• Issuing administrative compliance order;

• Issuing jurisdictional determination regarding "waters of the United States."

Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544

• Listing a species as endangered or threatened;

• Failing to timely respond to a petition for listing or delisting of a species;

• Finalizing a 4(d) rule in conjunction with a threatened species listing;

• Designating critical habitat;

• Issuing a biological opinion as part of Section 7 consultation;

• Approving or denying an application for a

...