Judicial Review Requirements: An Overview

We just learned about the various standards of review that courts apply when reviewing substantive agency actions including agencies’ statutory interpretations, rulemaking decisions, and other substantive determinations that agencies undertake. Before courts can review agency actions, people suing agencies under APA’s Section 702 right of judicial review have to demonstrate that they have satisfied the constitutional, statutory, and common law requirements for obtaining judicial review. Requirements for judicial review of agency decisions includes:

• Standing (Constitution Article III: Judicial power extends to “cases and controversies”)
• Jurisdiction (Procedural Rules & Statutes)
• Agency Action (APA Section 702 limits right of review to persons suffering wrongs due to “agency action.” APA Section 551(13) defines agency action.)
• Cause of Action (Statutes: Some statutes contain citizen suit provisions and APA Section 702 covers people “suffering legal wrong because of agency action, or adversely affected by agency action…”)
• Timing Requirements: You cannot sue and agency unless the timing is right -
  • Finality (Agency action must be final per APA Section 704)
  • Exhaustion (Plaintiff must exhaust all administrative remedies before suing agency per APA Section 704)
  • Ripeness (Common law requirement that ensures agency action is ripe for review and lawsuit is not premature

Because we do not have time to study each of these judicial review requirements, Lamdan will focus on the requirements that are most unique to administrative law, assuming that you will learn about the other requirements in your Constitutional Structures course. We will focus on 1) how to demonstrate that you have standing to sue an agency, 2) the agency action requirement in APA Section 702, and 3) whether an agency action is final as required by APA Section 704.

Standing

You will probably learn about standing in both PI and Constitutional Structures. The U.S. Constitution, Article III, Section 2, limits federal judicial power to resolving “Cases” and “Controversies.” For something to be  “case” or “controversy”, there must be a sufficient connection between the plaintiff in the lawsuit. The plaintiff has to “have a stake in the game” or a legally protected interest in the dispute. 

In Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992), the Supreme Court created a three-part test to determine whether a party has standing to sue:

1) The plaintiff must have suffered an "injury in fact," meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent

2) There must be a causal connection (causation) between the injury and the conduct brought before the court

3) It must be likely, rather than speculative, that a favorable decision by the court will redress the injury

When a government agency takes an agection against a person through rulemaking or adjudication, and that action interferes with the person’s liberty or property, it is easy to show that there is a sufficient case or controversy to satisfy standing requirements. However, when the agency’s action (or lack of action) interferes with a third party’s liberty or property, it is harder to show that a plaintiff has standing. For instance, environmental groups often try to sue agencies for inadequately regulating industrial pollution. To successfully bring lawsuits for environmental harm, the organization cannot sue on behalf of inanimate objects like trees or air. It also has to demonstrate that the agency’s action is the cause of the environmental harm. Environmental groups’ complaints contain in-depth descriptions of its organizational goals and membership to establish their standing to sue the agency. See, for instance, the description of the parties to this NRDC lawsuit on p. 5 of this complaint against the Bureau of Land Management (“BLM”) challenging the agency’s plan to allow oil drilling and fracking on public lands in California. In the description of NRDC members, the organization specifically identifies its membership and organizational activities in the region of California at risk of harm from the fracking activities the BLM is permitting.

To see how courts assess whether plaintiffs have standing to sue agencies, we will read Luhan v. Defenders of Wildlife, the case that first describes the three-element rule that courts apply to determine whether plaintiffs have standing, and Massachusetts v. EPA, a case where we learn whether states have standing to sue an agency for promulgating a rule that decreatese the states’ air quality.