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.

Lujan v. Defenders of Wildlife

504 U.S. 555 (1992)

Justice Scalia delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, and an opinion with respect to Part III-B, in which The Chief Justice, Justice White, and Justice Thomas join.

This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting § 7 of the Endangered Species Act of 1973 (ESA) in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of the rule.

The ESA seeks to protest species of animals against threats to their continuing existence caused by man. The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. [§ 7(a) of the ESA requires agencies to consult with either the Secretary of Interior or Commerce before undertaking actions that may jeopardize the continued existence of an endangered or threatened species, including actions that may jeopardize their critical habitats.]

In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by [§ 7(a) of the ESA] extend to actions taken in foreign nations. The next year, however, the Interior Department began to reexamine its position. A revised joint regulation [limiting ESA § 7(a) to] actions taken in the United States or on the high seas, was proposed in 1983 and promulgated in 1986.

Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of § 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation. [The District Court granted the Secretary’s motion to dismiss for lack of standing. The Court of Appeals for the Eighth Circuit reversed by a divided vote. On remand, the Secretary moved for summary judgment on the standing issue, and respondents moved for summary judgment on the merits. The District Court denied the Secretary’s motion, on the ground that the Eighth Circuit had already determined the standing question in this case; it granted respondents’ merits motion, and ordered the Secretary to publish a revised regulation. The Eighth Circuit affirmed. We granted certiorari.

II

While the Constitution of the United States divides all power conferred upon the Federal Government into “legislative Powers,” Art. I, § 1, “[t]he executive Power,” Art. II, § 1, and “[t]he judicial Power,” Art. III, § 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to “Cases” and “Controversies,” but an executive inquiry can bear the name “case” (the Hoffa case) and a legislative dispute can bear the name “controversy” (the Smoot-Hawley controversy). Obviously, then, the Constitution’s central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts. [...] [S]etting apart the “Cases” and “Controversies” that are of the justiciable sort referred to in Article III— “serv[ing] to identify those disputes which are appropriately resolved through the judicial process,”—is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. 

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly. . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

The party invoking federal jurisdiction bears the burden of establishing these elements. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation [...] 

When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction—and perhaps on the response of others as well. The existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redress ability of injury. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish.

III

We think the Court of Appeals failed to apply the foregoing principles in denying the Secretary’s motion for summary judgment. Respondents had not made the requisite demonstration of (at least) injury and redressability.

A

Respondents’ claim to injury is that the lack of consultation with respect to certain funded activities abroad “increas[es] the rate of extinction of endangered and threatened species.” Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing. “But the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” To survive the Secretary’s summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents’ members would thereby be “directly” affected apart from their “‘special interest’ in th[e] subject.”

With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders’ members— Joyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and “observed the traditional habitat of the endangered nile crocodile there and intend[s] to do so again, and hope[s] to observe the crocodile directly,” and that she “will suffer harm in fact as the result of [the] American . . . role . . . in overseeing the rehabilitation of the Aswan High Dam on the Nile . . . and [in] develop[ing] . . . Egypt’s. . . Master Water Plan.” Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and “observed th[e] habitat” of “endangered species such as the Asian elephant and the leopard” at what is now the site of the Mahaweli project funded by the Agency for International Development (AID), although she “was unable to see any of the endangered species”; “this development project,” she continued, “will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited . . . [, which] may severely shorten the future of these species”; that threat, she concluded, harmed her because she “intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard.” When Ms. Skilbred was asked at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that “I intend to go back to Sri Lanka,” but confessed that she had no current plans: “I don’t know [when]. There is a civil war going on right now. I don’t know. Not next year, I will say. In the future.”

We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed species—though that is questionable. They plainly contain no facts, however, showing how damage to the species will produce “imminent” injury to Mses. Kelly and Skilbred. That the women “had visited” the areas of the projects before the projects commenced proves nothing. As we have said in a related context, “‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’” And the affiants’ profession of an “inten[t]” to return to the places they had visited before—where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species—is simply not enough. Such “some day” intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the “actual or imminent” injury that our cases require. 

Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standing theories. The first, inelegantly styled “ecosystem nexus,” proposes that any person who uses any part of a “contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinion in National Wildlife Federation, which held that a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly “in the vicinity” of it [...] 

Respondents’ other theories are called, alas, the “animal nexus” approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the “vocational nexus” approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not “an ingenious academic exercise in the conceivable,” but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible—though it goes to the outermost limit of plausibility—to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that might have been the subject of his interest will no longer exist. It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.

B [...]

Besides failing to show injury, respondents failed to demonstrate redressability[...]

The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents’ alleged injury unless the funding agencies were bound by the Secretary’s regulation, which is very much an open question [...] 

A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. [I]t is entirely conjectural whether the nonagency activity that affects respondents will be altered or affected by the agency activity they seek to achieve. There is no standing.

IV

The Court of Appeals found that respondents had standing for an additional reason: because they had suffered a “procedural injury.” The so-called “citizen-suit” provision of the ESA provides, in pertinent part, that “any person may commence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter.” 16 U.S.C. § 1540(g). The court held that, because § 7(a)(2) requires interagency consultation, the citizen-suit provision creates a “procedural righ[t]” to consultation in all “persons”—so that anyone can file suit in federal court to challenge the Secretary’s (or presumably any other official’s) failure to follow the assertedly correct consultative procedure, notwithstanding his or her inability to allege any discrete injury flowing from that failure. To understand the remarkable nature of this holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e.g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them). Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government’s benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, selfcontained, noninstrumental “right” to have the Executive observe the procedures required by law. We reject this view.

We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy [...] 

To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch—one of the essential elements that identifies those “Cases” and “Controversies” that are the business of the courts rather than of the political branches. “The province of the court,” as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 170 (1803), “is, solely, to decide on the rights of individuals.” Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies’ observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-ofpowers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take Care that the Laws be faithfully executed” [...] 

Nothing in this contradicts the principle that “[t]he . . . injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’” [But the cases that said this] involved Congress’ elevating to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law (namely, injury to an individual’s personal interest in living in a racially integrated community and injury to a company's interest in marketing its product free from competition). As we said in Sierra Club v. Morton, “[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.” 405 U. S., at 738. [I]t is clear that in suits against the Government, at least, the concrete injury requirement must remain.

We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denying the summary judgment motion filed by the United States. The opinion of the Court of Appeals is hereby reversed, and the cause is remanded for proceedings consistent with this opinion.

Justice Kennedy, with whom Justice Souter joins, concurring in part and concurring in the judgment.

Although I agree with the essential parts of the Court’s analysis, I write separately to make several observations [...]

While it may seem trivial to require that Mses. Kelly and Skilbred acquire airline tickets to the project sites or announce a date certain upon which they will return, this is not a case where it is reasonable to assume that the affiants will be using the sites on a regular basis, see Sierra Club v. Morton, supra, nor do the affiants claim to have visited the sites since the projects commenced. With respect to the Court's discussion of respondents’ “ecosystem nexus,” “animal nexus,” and “vocational nexus” theories, I agree that on this record respondents’ showing is insufficient to establish standing on any of these bases. I am not willing to foreclose the possibility, however, that in different circumstances a nexus theory similar to those proffered here might support a claim to standing [...] 

I also join Part IV of the Court's opinion with the following observations. As Government programs and policies become more complex and far reaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition. Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission, Marbury v. Madison, 1 Cranch 137 (1803), or Ogden seeking an injunction to halt Gibbons’ steamboat operations, Gibbons v. Ogden, 9 Wheat. 1 (1824). In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court’s opinion to suggest a contrary view. In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provision of the Endangered Species Act does not meet these minimal requirements, because while the statute purports to confer a right on “any person . . . to enjoin . . . the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter,” it does not of its own force establish that there is an injury in “any person” by virtue of any “violation.”

The Court's holding that there is an outer limit to the power of Congress to confer rights of action is a direct and necessary consequence of the case and controversy limitations found in Article III. I agree that it would exceed those limitations if, at the behest of Congress and in the absence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws. While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that “the legal questions presented . . . will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.”

Massachusetts v. Environmental Protection Agency

549 U.S. 497 (2007)

Justice STEVENS delivered the opinion of the Court.

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species — the most important species — of a “greenhouse gas.”

Calling global warming “the most pressing environmental challenge of our time,” a group of States, local governments, and private organizations alleged in a petition for certiorari that the Environmental Protection Agency (EPA) has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide. Specifically, petitioners asked us to answer two questions concerning the meaning of § 202(a)(1) of the Act: whether EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles; and if so, whether its stated reasons for refusing to do so are consistent with the statute.

In response, EPA, supported by 10 intervening States and six trade associations, correctly argued that we may not address those two questions unless at least one petitioner has standing to invoke our jurisdiction under Article III of the Constitution [...] 

II

On October 20, 1999, a group of 19 private organizations filed a rulemaking petition asking EPA to regulate “greenhouse gas emissions from new motor vehicles under § 202 of the Clean Air Act.” Petitioners maintained that 1998 was the “warmest year on record”; that carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are “heat trapping greenhouse gases”; that greenhouse gas emissions have significantly accelerated climate change; and that [...] “carbon dioxide remains the most important contributor to [manmade] forcing of climate change.” The petition further alleged that climate change will have serious adverse effects on human health and the environment [...] 

On September 8, 2003, EPA entered an order denying the rulemaking petition. The Agency gave two reasons for its decision: (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change, and (2) that even if the Agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time [...]

III

Petitioners, now joined by intervenor States and local governments, sought review of EPA’s order in the United States Court of Appeals for the District of Columbia Circuit [...] 

Judge Sentelle wrote separately because he believed petitioners failed to “demonstrat[e] the element of injury necessary to establish standing under Article III.” In his view, they had alleged that global warming is “harmful to humanity at large,” but could not allege “particularized injuries” to themselves [...] 

IV

Article III of the Constitution limits federal-court jurisdiction to “Cases” and “Controversies.” Those two words confine “the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.” It is therefore familiar learning that no justiciable “controversy” exists when parties seek adjudication of a political question, when they ask for an advisory opinion, or when the question sought to be adjudicated has been mooted by subsequent developments. This case suffers from none of these defects.

The parties’ dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. That authorization is of critical importance to the standing inquiry: “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” “In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” We will not, therefore, “entertain citizen suits to vindicate the public’s non-concrete interest in the proper administration of the laws.” 

EPA maintains that because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable jurisdictional obstacle. We do not agree. At bottom, “the gist of the question of standing” is whether petitioners have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” 

[...] To ensure the proper adversarial presentation, Lujan holds that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. However, a litigant to whom Congress has “accorded a procedural right to protect his concrete interests” [like Clean Air Act’s citizen suit provision vesting litigants with a procedural right to sue the agency], that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.

Only one of the petitioners needs to have standing to permit us to consider the petition for review. We stress here, [...] the special position and interest of Massachusetts. It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual.

Well before the creation of the modern administrative state, we recognized that States are not normal litigants for the purposes of invoking federal jurisdiction [...] 

When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted. 

These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator's] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7521(a)(1). Congress has moreover recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious. Given that procedural right and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.

With that in mind, it is clear that petitioners’ submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both “actual” and “imminent.” There is, moreover, a “substantial likelihood that the judicial relief requested” will prompt EPA to take steps to reduce that risk.

The Injury

The harms associated with climate change are serious and well recognized [...] According to the climate scientist Michael MacCracken, “qualified scientific experts involved in climate change research” have reached a “strong consensus” that global warming threatens (among other things) a precipitate rise in sea levels by the end of the century, “severe and irreversible changes to natural ecosystems,” id., a “significant reduction in water storage in winter snowpack in mountainous regions with direct and important economic consequences,” and an increase in the spread of disease. He also observes that rising ocean temperatures may contribute to the ferocity of hurricanes.

That these climate-change risks are “widely shared” does not minimize Massachusetts’ interest in the outcome of this litigation. According to petitioners’ unchallenged affidavits, global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming. These rising seas have already begun to swallow Massachusetts’ coastal land. Because the Commonwealth “owns a substantial portion of the state’s coastal property,” it has alleged a particularized injury in its capacity as a landowner. The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be “either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events.” Remediation costs alone, petitioners allege, could run well into the hundreds of millions of dollars.

Causation

EPA does not dispute the existence of a causal connection between manmade greenhouse gas emissions and global warming. At a minimum, therefore, EPA’s refusal to regulate such emissions “contributes” to Massachusetts’ injuries.

EPA nevertheless maintains that its decision not to regulate greenhouse gas emissions from new motor vehicles contributes so insignificantly to petitioners’ injuries that the Agency cannot be haled into federal court to answer for them. For the same reason, EPA does not believe that any realistic possibility exists that the relief petitioners seek would mitigate global climate change and remedy their injuries. That is especially so because predicted increases in greenhouse gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease.

But EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more nuanced understanding of how best to proceed. That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.

And reducing domestic automobile emissions is hardly a tentative step. Even leaving aside the other greenhouse gases, the United States transportation sector emits an enormous quantity of carbon dioxide into the atmosphere [...] To put this in perspective: Considering just emissions from the transportation sector, which represent less than one-third of this country’s total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, outpaced only by the European Union and China. Judged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.

The Remedy

While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it [...] A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere [...]

In sum — at least according to petitioners’ uncontested affidavits — the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek. We therefore hold that petitioners have standing to challenge EPA’s denial of their rulemaking petition.

V

The scope of our review of the merits of the statutory issues is narrow. As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) 

[The EPA’s arguments that 1) the Clean Air Act does not authorize the EPA to regulate greenhouse gases and 2) it would be unwise to regulate greenhouse gases at this time are arbitrary and capricious.] 

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

APA Section 702 says that “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” The APA defines agency action in 5 U.S.C. Section 701(b)(2), referencing 5 U.S.C. Section 551. Many agency activities are defined as “agency action,” including “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” However, not everything that agencies do is considered an “agency action.” Courts have limited Section 702’s scope of review, in some cases, finding that agency activities are not “agency actions” entitled to judicial review.

Lujan v. National Wildlife Federation

497 U.S. 871 (1990)

JUSTICE SCALIA delivered the opinion of the Court.

[In 1934, President Franklin Roosevelt “withdrew” federal lands from “resource development” (mining, etc.) pending their study and classification by the Secretary of the Interior. This order was carried out through a variety of “miscellaneous laws governing disposal of public land.” 

In 1976, Congress passed the Federal Land Policy and Management Act (FLPMA), to organize the disorganized, “chaotic” public lands classification process. FLPMA required the Secretary of the Interior to prepare an inventory of all public lands, to make land use plans for those lands, and to review the existing classifications and make changes to those plans in line with statutory objectives. The Secretary of the Interior delegated this project, called the “land withdrawal review program” to the Bureau of Land Management (BLM), a sub-agency within the Department of the Interior. 

[The National Wildlife Federation (NWF) alleges that the BLM “land withdrawal review program” violated FLPMA’s procedural requirements. In particular, NWF claims that BLM failed to “develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands, failed to submit recommendations as to withdrawals in the 11 Western States to the President, failed to consider multiple uses for the disputed lands, focused inordinately on such uses as mineral exploitation and development, and failing to provide public notice of decisions. NWF alleges that all of the above actions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and should therefore be set aside pursuant to APA § 706.]

IV

It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable [NWF] to challenge the entirety of petitioners’ so-called “land withdrawal review program.” That is not an “agency action” within the meaning of § 702, much less a “final agency action” within the meaning of § 704. The term “land withdrawal review program” (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable “agency action”—much less a “final agency action”—than a “weapons procurement program” of the Department of Defense or a “drug interdiction program” of the Drug Enforcement Administration. As the District Court explained, the “land withdrawal review program” extends to, currently at least, “1250 or so individual classification terminations and withdrawal revocations.”

Respondent alleges that violation of the law is rampant within this program — failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular “agency action” that causes it harm [...] 

In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a “rule” is defined in the APA as agency action of “general or particular applicability and future effect,” 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency’s intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs. But it is at least entirely certain that the flaws in the entire “program”—consisting principally of the many individual actions referenced in the complaint, and presumably actions yet to be taken as well— cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent’s members.

The case-by-case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific “final agency action” has an actual or immediately threatened effect. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole “program” to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches [...]

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.

[...] I agree with much of the Court’s discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person “adversely affected or aggrieved by agency action.” 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule.

Application of these principles to the instant case does not turn on whether, or how often, the Bureau’s land-management policies have been described as a “program.” In one sense, of course, there is no question that a “program” exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: If the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an “agency action”). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly affect tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake [...]

Norton v. Southern Utah Wilderness Alliance

542 U.S. 55 (2004)

JUSTICE SCALIA delivered the opinion of the Court.

In this case, we must decide whether the authority of a federal court under the Administrative Procedure Act (APA) to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), extends to the review of the United States Bureau of Land Management’s stewardship of public lands under certain statutory provisions [...]

I

Almost half the State of Utah, about 23 million acres, is federal land administered by the Bureau of Land Management (BLM), an agency within the Department of Interior. For nearly 30 years, BLM’s management of public lands has been governed by the Federal Land Policy and Management Act of 1976 (FLPMA), which “established a policy in favor of retaining public lands for multiple use management.” “Multiple use management” is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, “including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values” [...]

Of course not all uses are compatible. Congress made the judgment that some lands should be set aside as wilderness at the expense of commercial and recreational uses including [designated wilderness areas that “shall [have] no commercial enterprise and no permanent road,” no motorized vehicles, and no manmade structures.] The designation of a wilderness area can be made only by Act of Congress, see 43 U.S.C. § 1782(b).

Pursuant to § 1782, the Secretary of the Interior (Secretary) has identified so-called “wilderness study areas” (WSAs), roadless lands of 5,000 acres or more that possess “wilderness characteristics,” as determined in the Secretary’s land inventory. As the name suggests, WSAs [...] have been subjected to further examination and public comment in order to evaluate their suitability for designation as wilderness. In 1991, out of 3.3 million acres in Utah that had been identified for study, 2 million were recommended as suitable for wilderness designation. This recommendation was forwarded to Congress, which has not yet acted upon it. Until Congress acts one way or the other, FLPMA provides that “the Secretary shall continue to manage such lands ... in a manner so as not to impair the suitability of such areas for preservation as wilderness.” This nonimpairment mandate applies to all WSAs identified under § 1782, including lands considered unsuitable by the Secretary” [...] 

Protection of wilderness has come into increasing conflict with another element of multiple use, recreational use of so-called off-road vehicles (ORVs), which include vehicles primarily designed for off-road use, such as lightweight, four-wheel “all-terrain vehicles,” and vehicles capable of such use, such as sport utility vehicles. According to the United States Forest Service’s most recent estimates, some 42 million Americans participate in off-road travel each year, more than double the number two decades ago. United States sales of all-terrain vehicles alone have roughly doubled in the past five years, reaching almost 900,000 in 2003. The use of ORVs on federal land has negative environmental consequences, including soil disruption and compaction, harassment of animals, and annoyance of wilderness lovers. Thus, BLM faces a classic land use dilemma of sharply inconsistent uses, in a context of scarce resources and congressional silence with respect to wilderness designation.

In 1999, respondents Southern Utah Wilderness Alliance and other organizations (collectively SUWA) filed this action in the United States District Court for Utah against petitioners BLM, its Director, and the Secretary [seeking] declaratory and injunctive relief for BLM’s failure to act to protect public lands in Utah from damage caused by ORV use [...] SUWA contended that it could sue to remedy these three failures to act pursuant to the APA's provision of a cause of action to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1) [...]

The APA authorizes suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. Where no other statute provides a private right of action, the “agency action” complained of must be “final agency action.” § 704 (emphasis added). “[A]gency action” is defined in § 551(13) to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” (Emphasis added.) The APA provides relief for a failure to act in § 706(1): “The reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.”

Sections 702, 704, and 706(1) all insist upon an “agency action,” either as the action complained of (in §§ 702 and 704) or as the action to be compelled (in § 706(1)). The definition of that term begins with a list of five categories of decisions made or outcomes implemented by an agency — "agency rule, order, license, sanction [or] relief." § 551(13). All of those categories involve circumscribed, discrete agency actions, as their definitions make clear: “an agency statement of . . . future effect designed to implement, interpret, or prescribe law or policy” (rule); “a final disposition . . . in a matter other than rule making” (order); a “permit . . . or other form of permission” (license); a “prohibition . . . or . . . taking [of] other compulsory or restrictive action” (sanction); or a “grant of money, assistance, license, authority,” etc., or “recognition of a claim, right, immunity,” etc., or “taking of other action on the application or petition of, and beneficial to, a person” (relief). §§ 551(4), (6), (8), (10), (11).

The terms following those five categories of agency action are not defined in the APA: “or the equivalent or denial thereof, or failure to act.” § 551(13). But an “equivalent . . . thereof” must also be discrete (or it would not be equivalent), and a “denial thereof” must be the denial of a discrete listed action (and perhaps denial of a discrete equivalent).

The final term in the definition, “failure to act,” is in our view properly understood as a failure to take an agency action — that is, a failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13). Moreover, even without this equation of “act” with “agency action” the interpretive canon of ejusdem generis would attribute to the last item (“failure to act”) the same characteristic of discreteness shared by all the preceding items. A “failure to act” is not the same thing as a “denial.” The latter is the agency’s act of saying no to a request; the former is simply the omission of an action without formally rejecting a request — for example, the failure to promulgate a rule or take some decision by a statutory deadline. The important point is that a “failure to act” is properly understood to be limited, as are the other items in § 551(13), to a discrete action.

A second point central to the analysis of the present case is that the only agency action that can be compelled under the APA is action legally required. This limitation appears in § 706(1)’s authorization for courts to “compel agency action unlawfully withheld.” (Emphasis added.) In this regard the APA carried forward the traditional practice prior to its passage, when judicial review was achieved through use of the so-called prerogative writs — principally writs of mandamus under the All Writs Act. The mandamus remedy was normally limited to enforcement of “a specific, unequivocal command,” the ordering of a “‘precise, definite act . . . about which [an official] had no discretion whatever,’” As described in the Attorney General’s Manual on the APA, a document whose reasoning we have often found persuasive, § 706(1) empowers a court only to compel an agency “to perform a ministerial or non-discretionary act,” or “to take action upon a matter, without directing how it shall act.” 

Thus, a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. These limitations rule out several kinds of challenges. The limitation to discrete agency action precludes the kind of broad programmatic attack we rejected in Lujan v. National Wildlife Federation, 497 U. S. 871 (1990). There we considered a challenge to BLM’s land withdrawal review program, couched as unlawful agency “action” that the plaintiffs wished to have “set aside” under § 706(2). We concluded that the program was not an “agency action”:

“[R]espondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular `agency action' that causes it harm.”

The plaintiffs in National Wildlife Federation would have fared no better if they had characterized the agency’s alleged “failure to revise land use plans in proper fashion” and “failure to consider multiple use,” in terms of “agency action unlawfully withheld” under § 706(1), rather than agency action “not in accordance with law” under § 706(2).

The limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law (which includes, of course, agency regulations that have the force of law). Thus, when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency’s discretion, a court can compel the agency to act, but has no power to specify what the action must be. For example, 47 U.S.C. § 251(d)(1), which required the Federal Communications Commission “to establish regulations to implement” interconnection requirements “[w]ithin 6 months” of the date of enactment of the Telecommunications Act of 1996, would have supported a judicial decree under the APA requiring the prompt issuance of regulations, but not a judicial decree setting forth the content of those regulations.

With these principles in mind, we turn to SUWA’s [...] claim, that by permitting ORV use in certain WSAs, BLM violated its mandate to “continue to manage [WSAs] . . . in a manner so as not to impair the suitability of such areas for preservation as wilderness,” 43 U.S.C. § 1782(c). SUWA relies not only upon § 1782(c) but also upon a provision of BLM’s Interim Management Policy for Lands Under Wilderness Review, which interprets the nonimpairment mandate to require BLM to manage WSAs so as to prevent them from being “degraded so far, compared with the area’s values for other purposes, as to significantly constrain the Congress’s prerogative to either designate [it] as wilderness or release it for other uses.”

Section 1782(c) is mandatory as to the object to be achieved, but it leaves BLM a great deal of discretion in deciding how to achieve it. It assuredly does not mandate, with the clarity necessary to support judicial action under § 706(1), the total exclusion of ORV use.

SUWA argues that § 1782 does contain a categorical imperative, namely, the command to comply with the nonimpairment mandate. It contends that a federal court could simply enter a general order compelling compliance with that mandate, without suggesting any particular manner of compliance. It relies upon the language from the Attorney General’s Manual quoted earlier, that a court can “take action upon a matter, without directing how [the agency] shall act,” and upon language in a case cited by the Manual noting that “mandamus will lie . . . even though the act required involves the exercise of judgment and discretion.” The action referred to in these excerpts, however, is discrete agency action, as we have discussed above. General deficiencies in compliance [...] lack the specificity requisite for agency action.

The principal purpose of the APA limitations we have discussed — and of the traditional limitations upon mandamus from which they were derived — is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve. If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved — which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management. To take just a few examples from federal resources management, a plaintiff might allege that the Secretary had failed to “manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance,” or to “manage the [New Orleans Jazz National] [H]istorical [P]ark in such a manner as will preserve and perpetuate knowledge and understanding of the history of jazz,” or to “manage the [Steens Mountain] Cooperative Management and Protection Area for the benefit of present and future generations.” 16 U.S.C. §§ 1333(a), 410bbb-2(a)(1), 460nnn-12(b). The prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with such congressional directives is not contemplated by the APA [...]

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Timing Requirements for Judicial Review of Agency Actions

Petitioners need to overcome three timing requirements to obtain judicial review of agency actions: 

1) Finality: Agency actions must be final according to APA Section 704, unless Congress has authorized review at an earlier stage.

2) Exhaustion: Courts have also interpreted APA Section 704 as requiring petitioners to show that they have exhausted all available administrative remedies before they ask a court to review an agency’s decision/action. 

3) Ripeness: Parties can only obtain judicial review when agency actions are ripe for review, according to common law.

Because we do not have time to address all three timing requirements, we will focus on Finality, which is exceptional to administrative law per APA Section 704.

Finality: An Overview

APA Section 704 says that courts can review “agency action made reviewable by statute and final agency action for which there is no adequate remedy [...]” Unless a statute specifically provides for judicial review of an agency action, APA Section 704’s procedural requirement limits review to “final agency actions.”

To assess whether a rule is final, courts focus on whether the agency action has immediate and direct effects. Finality is clear where agencies create a final rule or order (aka the decisions creating final, binding rules in rulemaking and adjudication). Finality is less clear where agencies are issuing guidance or doing other activities where there may not be binding legal consequences, and it is not clear whether the agency has concluded its deliberations. 

Over the years, courts have devised several different, but similar, tests to determine whether an agency’s action is “final” and appropriate for judicial review. In this class, we will focus on the test adopted by the Supreme Court in Bennett v. Spear, which is a two-part test that has been used in recent cases to assess whether an agency’s action is final. (You may read Abbott Labs v. Gardner (1967) in your Constitutional Structures class. In that case, the Supreme Courrt applies a four-element rule to determine whether the agency’s action was final. More recent cases, including Sackett v. EPA (2012) refer to the two-element Bennett test instead.)

Bennett v. Spear

520 U.S. 154 (1997)

Justice Scalia, delivered the opinion of the Court.

This is a challenge to a biological opinion issued by the Fish and Wildlife Service in accordance with the Endangered Species Act of 1973 (ESA) concerning the operation of the Klamath Irrigation Project by the Bureau of Reclamation, and the project's impact on two varieties of endangered fish. The question for decision is whether the petitioners, who have competing economic and other interests in Klamath Project water, have standing to seek judicial review of the biological opinion under the citizen-suit provision of the ESA, § 1540(g)(1), and the Administrative Procedure Act (APA).

I

The ESA requires the Secretary of the Interior to promulgate regulations listing those species of animals that are “threatened” or “endangered” [...] and to designate their “critical habitat.” The ESA further requires each federal agency to “insure that any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary. . . to be critical.” If an agency [action] may adversely affect a listed species, it must [consult] with the Fish and Wildlife Service, after which the Service must provide the agency with a written statement (the Biological Opinion) explaining how the proposed action will affect the species or its habitat. If the Service concludes that the proposed action will “jeopardize the continued existence of any [listed] species or threatened species or result in the destruction or adverse modification of [critical habitat],” the Biological Opinion must outline any “reasonable and prudent alternatives” that the Service believes will avoid that consequence. [In some cases, the Biological Opinion includes an “Incidental Take Statement.” Incidental Take Statements estimates the “take” of a threatened or endangered species that will likely result from an action by a federal agency. “Take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, the species. An Incidental Take Statement “constitutes a permit authorizing the action agency to “take” the endangered or threatened species so long as it respects the Service’s “terms and conditions.” ]    

The Klamath Project [...] is a series of lakes, rivers, dams, and irrigation canals in northern California and southern Oregon. The project was undertaken by the Secretary of the Interior pursuant to the Reclamation Act of 1902, and is administered by the Bureau of Reclamation, which is under the Secretary’s jurisdiction. In 1992, the Bureau notified the Service that operation of the project might affect the Lost River Sucker (Deltistes luxatus) and Shortnose Sucker (Chasmistes brevirostris), species of fish that were listed as endangered in 1988. After formal consultation with the Bureau, the Service issued a Biological Opinion which concluded that the “‘longterm operation of the Klamath Project was likely to jeopardize the continued existence of the Lost River and shortnose suckers.’” The Biological Opinion identified “reasonable and prudent alternatives” the Service believed would avoid jeopardy, which included the maintenance of minimum water levels on Clear Lake and Gerber reservoirs. The Bureau later notified the Service that it intended to operate the project in compliance with the Biological Opinion. The Biological Opinion included an Incidental Take Statement.

Petitioners, two Oregon irrigation districts that receive Klamath Project water and the operators of two ranches within those districts, filed the present action against the director and regional director of the Service and the Secretary of the Interior [...] Petitioners’ complaint [claims] that the imposition of minimum water elevations constituted an implicit determination of critical habitat for the suckers [...] violated § 4 of the ESA, because it failed to take into consideration the designation’s economic impact. Each of the claims also states that the relevant action violated the APA’s prohibition of agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

The complaint asserts that petitioners’ use of the reservoirs and related waterways for “recreational, aesthetic and commercial purposes, as well as for their primary sources of irrigation water,” will be “irreparably damaged” by the actions complained of, and that the restrictions on water delivery “recommended” by the Biological Opinion “adversely affect plaintiffs by substantially reducing the quantity of available irrigation water,” In essence, petitioners claim a competing interest in the water the Biological Opinion declares necessary for the preservation of the suckers [...]

IV

The foregoing analysis establishes that the principal statute invoked by petitioners, the ESA, does authorize review of their claim, but does not support their claims [...] [W]e must therefore inquire whether these [...] claims may nonetheless be brought under the Administrative Procedure Act, which authorizes a court to “set aside agency action, findings, and conclusions found to be. . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706.

B

The Government contends that petitioners may not obtain judicial review under the APA on the theory that the Biological Opinion does not constitute “final agency action,” 5 U.S.C. § 704, because it does not conclusively determine the manner in which Klamath Project water will be allocated:

“Whatever the practical likelihood that the [Bureau] would adopt the reasonable and prudent alternatives (including the higher lake levels) identified by the Service, the Bureau was not legally obligated to do so. Even if the Bureau decided to adopt the higher lake levels, moreover, nothing in the biological opinion would constrain the [Bureau’s] discretion as to how the available water should be allocated among potential users.”

This confuses the question whether the Secretary’s action is final with the separate question whether petitioners’ harm is “fairly traceable” to the Secretary’s action (a question we have already resolved against the Government). 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 decision making 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.” It is uncontested that the first requirement is met here; and the second is met because, as we have discussed above, the Biological Opinion and accompanying Incidental Take Statement alter the legal regime to which the action agency is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions. In this crucial respect the present case is different from the cases upon which the Government relies, Franklin v. Massachusetts, 505 U. S. 788 (1992), and Dalton v. Specter, 511 U. S. 462 (1994). In the former case, the agency action in question was the Secretary of Commerce’s presentation to the President of a report tabulating the results of the decennial census; our holding that this did not constitute “final agency action” was premised on the observation that the report carried “no direct consequences” and served “more like a tentative recommendation than a final and binding determination.” And in the latter case, the agency action in question was submission to the President of base closure recommendations by the Secretary of Defense and the Defense Base Closure and Realignment Commission; our holding that this was not “final agency action” followed from the fact that the recommendations were in no way binding on the President, who had absolute discretion to accept or reject them. 

[Unlike the reports in Franklin and Dalton, which were purely advisory and in no way affected the legal rights of the relevant actors, the Biological Opinion at issue here has direct and appreciable legal consequences. The Fish and Wildlife Service concluded and issued its Biological Opinion and Incidental Take Statement (consummating its decision making process) and those decisions permit the Bureau of Reclamation to harm endangered fish that would otherwise be protected by the ESA. The Incidental Taking Statement permits the Bureau to bypass an legal requirement, changing the Bureau’s statutory limitations.]

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

United States Army Corps of Engineers v. Hawkes Co., Inc.

136 S.Ct. 1807 (2016)

Chief Justice ROBERTS delivered the opinion of the Court.

The Clean Water Act regulates the discharge of pollutants into “the waters of the United States.” Because it can be difficult to determine whether a particular parcel of property contains such waters, the U.S. Army Corps of Engineers will issue to property owners an “approved jurisdictional determination” stating the agency’s definitive view on that matter. The question presented is whether that determination is final agency action judicially reviewable under the Administrative Procedure Act, 5 U.S.C. § 704 [...]

During the time period relevant to this case, the U.S. Army Corps of Engineers defined the waters of the United States to include land areas occasionally or regularly saturated with water — such as “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes” [...] The Corps has applied that definition to assert jurisdiction over “270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.”

It is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does. The Clean Water Act imposes substantial criminal and civil penalties for discharging any pollutant into waters covered by the Act without a permit from the Corps. The costs of obtaining such a permit are significant. For a specialized “individual” permit of the sort at issue in this case, for example, one study found that the average applicant “spends 788 days and $271,596 in completing the process,” without “counting costs of mitigation or design changes.” [...]

The Corps specifies whether particular property contains “waters of the United States” by issuing “jurisdictional determinations” (JDs) on a case-by-case basis. JDs come in two varieties: “preliminary” and “approved.” While preliminary JDs merely advise a property owner “that there may be waters of the United States on a parcel,” approved JDs definitively “stat[e] the presence or absence” of such waters. Unlike preliminary JDs, approved JDs can be administratively appealed and are defined by regulation to “constitute a Corps final agency action.” They are binding for five years on both the Corps and the Environmental Protection Agency, which share authority to enforce the Clean Water Act. 

Respondents are three companies engaged in mining peat in Marshall County, Minnesota. Peat is an organic material that forms in waterlogged grounds, such as wetlands and bogs. It is widely used for soil improvement and burned as fuel. It can also be used to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts. At the same time, peat mining can have significant environmental and ecological impacts, and therefore is regulated by both federal and state environmental protection agencies.

Respondents own a 530-acre tract near their existing mining operations. The tract includes wetlands, which respondents believe contain sufficient high quality peat, suitable for use in golf greens, to extend their mining operations for 10 to 15 years. 

In December 2010, respondents applied to the Corps for a Section 404 permit for the property. A Section 404 permit authorizes “the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Over the course of several communications with respondents, Corps officials signaled that the permitting process would be very expensive and take years to complete. The Corps also advised respondents that, if they wished to pursue their application, they would have to submit numerous assessments of various features of the property, which respondents estimate would cost more than $100,000. 

In February 2012, in connection with the permitting process, the Corps issued an approved JD stating that the property contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. Respondents appealed the JD to the Corps’ Mississippi Valley Division Commander, who remanded for further fact-finding. On remand, the Corps reaffirmed its original conclusion and issued a revised JD to that effect.

Respondents then sought judicial review of the revised JD under the Administrative Procedure Act (APA). The District Court dismissed for want of subject matter jurisdiction, holding that the revised JD was not “final agency action for which there is no other adequate remedy in a court,” as required by the APA prior to judicial review, 5 U.S.C. § 704. The Court of Appeals for the Eighth Circuit reversed, and we granted certiorari.

II

The Corps contends that the revised JD is not “final agency action” and that, even if it were, there are adequate alternatives for challenging it in court. We disagree at both turns.

In Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), we distilled from our precedents two conditions that generally must be satisfied for agency action to be “final” under the APA. “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.”

The Corps does not dispute that an approved JD satisfies the first Bennett condition. Unlike preliminary JDs — which are “advisory in nature” and simply indicate that “there may be waters of the United States” on a parcel of property — an approved JD clearly “mark[s] the consummation” of the Corps’ decisionmaking process on that question. It is issued after extensive factfinding by the Corps regarding the physical and hydrological characteristics of the property, and is typically not revisited if the permitting process moves forward. Indeed, the Corps itself describes approved JDs as “final agency action,” and specifies that an approved JD “will remain valid for a period of five years.” 

The Corps may revise an approved JD within the five-year period based on “new information.” That possibility, however, is a common characteristic of agency action, and does not make an otherwise definitive decision nonfinal. By issuing respondents an approved JD, the Corps for all practical purposes “has ruled definitively” that respondents’ property contains jurisdictional waters.

The definitive nature of approved JDs also gives rise to “direct and appreciable legal consequences,” thereby satisfying the second prong of Bennett. Consider the effect of an approved JD stating that a party’s property does not contain jurisdictional waters — a “negative” JD, in Corps parlance. As noted, such a JD will generally bind the Corps for five years. Under a longstanding memorandum of agreement between the Corps and EPA, it will also be “binding on the Government and represent the Government’s position in any subsequent Federal action or litigation concerning that final determination.” A negative JD thus binds the two agencies authorized to bring civil enforcement proceedings under the Clean Water Act, creating a five-year safe harbor from such proceedings for a property owner. Additionally, although the property owner may still face a citizen suit under the Act, such a suit — unlike actions brought by the Government — cannot impose civil liability for wholly past violations. In other words, a negative JD both narrows the field of potential plaintiffs and limits the potential liability a landowner faces for discharging pollutants without a permit. Each of those effects is a “legal consequence[ ]” satisfying the second Bennett prong. 

It follows that affirmative JDs have legal consequences as well: They represent the denial of the safe harbor that negative JDs afford. See 5 U.S.C. § 551(13) (defining “agency action” to include an agency “rule, order, license, sanction, relief, or the equivalent,” or the “denial thereof”). Because “legal consequences ... flow” from approved JDs, they constitute final agency action.

This conclusion tracks the “pragmatic” approach we have long taken to finality. Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). For example, in Frozen Food Express v. United States, 351 U.S. 40 (1956), we considered the finality of an order specifying which commodities the Interstate Commerce Commission believed were exempt by statute from regulation, and which it believed were not. Although the order “had no authority except to give notice of how the Commission interpreted” the relevant statute, and “would have effect only if and when a particular action was brought against a particular carrier,” we held that the order was nonetheless immediately reviewable. The order, we explained, “warns every carrier, who does not have authority from the Commission to transport those commodities, that it does so at the risk of incurring criminal penalties.” So too here, while no administrative or criminal proceeding can be brought for failure to conform to the approved JD itself, that final agency determination not only deprives respondents of a five-year safe harbor from liability under the Act, but warns that if they discharge pollutants onto their property without obtaining a permit from the Corps, they do so at the risk of significant criminal and civil penalties.

Even if final, an agency action is reviewable under the APA only if there are no adequate alternatives to APA review in court. 5 U.S.C. § 704. The Corps contends that respondents have two such alternatives: either discharge fill material without a permit, risking an EPA enforcement action during which they can argue that no permit was required, or apply for a permit and seek judicial review if dissatisfied with the results. 

Neither alternative is adequate. As we have long held, parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of “serious criminal and civil penalties.” If respondents discharged fill material without a permit, in the mistaken belief that their property did not contain jurisdictional waters, they would expose themselves to civil penalties of up to $37,500 for each day they violated the Act, to say nothing of potential criminal liability. Respondents need not assume such risks while waiting for EPA to “drop the hammer” in order to have their day in court.

Nor is it an adequate alternative to APA review for a landowner to apply for a permit and then seek judicial review in the event of an unfavorable decision. As Corps officials indicated in their discussions with respondents, the permitting process can be arduous, expensive, and long [...] 

The Corps nevertheless argues that Congress made the “evident[ ]” decision in the Clean Water Act that a coverage determination would be made “as part of the permitting process, and that the property owner would obtain any necessary judicial review of that determination at the conclusion of that process.” But as the Corps acknowledges, the Clean Water Act makes no reference to standalone jurisdictional determinations, so there is little basis for inferring anything from it concerning the reviewability of such distinct final agency action. And given “the APA’s presumption of reviewability for all final agency action.” “[t]he mere fact” that permitting decisions are “reviewable should not suffice to support an implication of exclusion as to other[ ]” agency actions, such as approved JDs.

Finally, the Corps emphasizes that seeking review in an enforcement action or at the end of the permitting process would be the only available avenues for obtaining review “[i]f the Corps had never adopted its practice of issuing standalone jurisdictional determinations upon request.” True enough. But such a “count your blessings” argument is not an adequate rejoinder to the assertion of a right to judicial review under the APA.