JurisdictionUnited States
Natural Resources & Environmental Administrative Law and Procedure
(Nov 1999)


Thomas C. Means
J. Michael Klise *
Crowell & Moring LLP
Washington, D.C.

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I. Introduction

II. When Judicial Review Is Available, Generally

A. APA Prerequisites

1. Final Agency Action
2. Statutory Preclusion of Judicial Review
3. Action Committed to Agency Discretion by Law

B. Justiciability

1. Standing
2. Ripeness
3. Exhaustion of Administrative Remedies

III. Sources Of Jurisdiction

A. The APA

B. Organic Statutes

C. Limited Right to Trial

IV. Supplementation Of The Record

V. Scope And Standard Of Review

A. General Principles

B. The Role of Chevron and its Progeny

1. How Agencies Have Attempted To Use Chevron
2. How Courts Have Applied Chevron

VI. Conclusion


I. Introduction

In today's increasingly complex society, there has been a tremendous growth in the administrative state and, with it, a growing need to guard against the arrogation of government power by an unaccountable bureaucracy. Nowhere is this more evident than in the area of natural resources law, especially in the mining and

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mineral law arena, which is regulated by myriad agencies under such diverse federal statutes as the Mining Law of 1872, the Federal Mine Safety and Health Act, the Federal Land Policy and Management Act, the Surface Mining Control and Reclamation Act, the Clean Water Act, the Endangered Species Act, and the Mineral Leasing Act, to mention just a few.1 In addition, federal regulatory agencies themselves are subject to the constraints of statutes such as the National Environmental Policy Act ("NEPA"),2 and to pressures from "advisory" laws such as the National Historic Preservation Act,3 adding an additional layer of uncertainty for many natural resources businesses. As a result, natural resources law has increasingly become an administrative law.

The potential for arbitrary agency conduct in these circumstances is substantial. Agency jurisdictions and statutory missions often overlap and sometimes even conflict. Single-purpose regulatory agencies pursue their agendas with fervor, often disregarding all competing societal values and interests. Moreover, the high public and political profile that environmental, public land-use, and occupational health and safety issues have assumed in the past thirty years, and the proliferation of citizen suit provisions during that same period, virtually assure the aggressive regulation of mining and mineral activities either directly by the agencies, or indirectly through private attorneys general.4

Courts, in theory at least, are above the ideological, social, and political pressures that drive regulation. The doctrine of judicial review over agency decisions rests on the premise that the Judicial Branch serves as a bulwark against unauthorized or arbitrary actions by the Executive Branch. Although the courts will normally defer to an agency's decisions on issues within its particular expertise and will attempt to refrain from second-guessing its judgment on policy, judicial review is more than a formality and is not a rubber stamp for agency actions: it is there to ensure that the agency does not act beyond its statutory authority, or act in

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violation of the Constitution, the Administrative Procedure Act ("APA"),5 or other laws.

Yet, the concerns that energize judicial review are balanced against the principles of a limited judiciary, a respect for democratic choices, and the more "efficient" regulation that can be obtained from specialized agencies. Judicial review works to check the unfettered discretion of an agency, enforce the will of Congress, and ensure that the agency is acting within its constitutional limits. At the same time, constraints on judicial review are intended to give agency expertise its due. For these reasons, the level of judicial scrutiny varies depending on the nature of the agency action being reviewed and the public interests at stake.

The historical origins of judicial review of agency action date back to the origin of judicial review generally. In the landmark case of Marbury v. Madison,6 the Supreme Court for the first time held a statute invalid as conflicting with the Constitution. Chief Justice Marshall's decision unabashedly announced a powerful role for the courts: "[i]t is emphatically the province and duty of the judicial department to say what the law is.... If two laws conflict with each other, the courts must decide on the operations of each."7 Marbury defines a hierarchy of laws. The Constitution is the supreme law controlling Congress, agencies, and the remainder of the government. Congressional legislation controls agencies by means of limits placed in the organic statutes through which the agencies obtain their authority and through generic statutes such as the APA and NEPA. The courts, through judicial review, are charged with preserving the boundaries of each participant's conferred authority within this balance of powers. As the Court stated in Marbury, "[t]he distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation."8

Following this Introduction, we explore in Part II of this Paper several prerequisites to judicial review of agency action. First, there must be a final agency action. Second, review must not be precluded by statute. Third, the action under review must not be committed to agency discretion by law. In addition, the plaintiff's or petitioner's claim must be justiciable: he must have standing, his claim must be ripe, and he must have met any relevant exhaustion requirements. Each of these prerequisites is guided by, and has ramifications for, the

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constitutional Separation of Powers. Part III explains the sources of jurisdiction for judicial review, the three types of agency action and their implications for judicial review, and the limited right to a trial in such review. Following the discussion of the limited right to a trial, Part IV explores another evidentiary limitation — the general rule against supplementation of the record upon review and various limited exceptions to that rule. Part V discusses the scope and standard of judicial review of agency actions, with a particular focus on the now pervasive Chevron two-step test to establish the level of deference an agency receives.9 In Part V, we also examine some of the strategies employed by agencies in invoking Chevron deference in defense of their actions. Part V concludes with an analysis of the courts' application of Chevron and its exceptions.

II. When Judicial Review Is Available, Generally

The nature of judicial review and the basic contours of its availability derive from our constitutional Separation of Powers. The process of judicial review over agency actions by its nature implicates all three branches of government: it is (1) judicial review of (2) executive agency action implementing (3) legislative directives. Thus, reviewing courts must be sensitive to Separation of Powers concerns, and to the many judicial doctrines and standards that have evolved in direct relation to those concerns. The judiciary can contain itself within its own boundaries through justiciability concerns at the same time that it gives agencies room to operate — ensuring through the standing doctrine that it does not pass judgment on an agency's conduct unless some injury is suffered and allowing the agency to correct its own errors or come to a final decision by precluding premature litigation through the doctrines of finality, ripeness, and exhaustion. Similarly, the standard of review over agency action seeks to respect the choices of the legislative and executive branches by employing great deference to those institutions. Consequently, the courts normally employ a highly deferential standard over most agency decisions.10 The political branches must operate within limits, but strong deference to agencies has been deemed necessary in order to curb judicial usurpation of their role and authority.

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A. APA Prerequisites
1. Final Agency Action

Under the APA, reviewable actions include "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court."11 An "agency action" is "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."12 Since review requires specific agency action, programmatic policy decisions are generally not subject to review.13

Absent a lower threshold established by a separate statute, the APA allows judicial review only of "final" agency action. In Bennett v. Spear,14 the Supreme Court explained the test for determining finality:

As a general matter, 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"....15

An agency action must create direct and appreciable legal consequences, and mere recommendations or actions that are advisory in nature will not be considered final.16

Finality is not always easy to determine or to distinguish from other requirements. For example, determining whether an agency's procedures afford or require avenues for administrative appeal or reconsideration of a challenged decision may complicate a determination of finality and blur the doctrines of finality

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and exhaustion. In Darby v. Cisneros,17 the Supreme Court recently explained the distinction between the two:


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