594 LEGAL ASPECTS OF THE ENVIRONMENT
Administrative Procedure ActThe Administrative Procedure Act provides both an indepen-
dent source of federal jurisdiction and a grant of standing to
conservation organizations and aggrieved persons seeking to
challenge decisions of, or actions by, Federal agencies which
may result in environmental degradation.
Senator McCarren, the author of the bill which ultimately
became the Administrative Procedure Act, explained that it
conferred no administrative powers, but provided definitions
of, and limitations upon, administrative action, to be inter-
preted and applied by the agencies in the first instance, but
to be reviewed by the courts in the final analysis.
The scope of judicial review of agency action is gov-
erned by the language of the Administrative Procedure Act:
To the extent necessary to decision, and when presented
the reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and deter-
mine the meaning or applicability of the terms of an agency
action. The reviewing court shall...2) hold unlawful and set aside agency action, find-
ings and conclusions found to be—
A) Arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with
the law;
B) Contrary to constitutional right, power, privi-
lege or immunity;
C) In excess of statutory jurisdiction, authority,
or limitations, or short of statutory rights;...
F) Unwarranted by the facts to the extent that
the facts are subject to trial de novo by the
reviewing court...(5 United States Code
§ 706).Under the Administrative Procedure Act any person “suf-
fering legal wrong because of agency action or adversely
affected or aggrieved by agency action within the meaning
of a relevant statute” may seek judicial review.
Agency action made reviewable by statute and final
agency action for which there is no other adequate remedy
in a court are subject to judicial review. A preliminary,
procedural, or intermediate agency action of ruling not
directly reviewable is subject to review on the review of
the final agency action. Except as otherwise expressly
required by statute, agency action otherwise final is final
for the purposes of [the Administrative Procedure Act]
whether or not there has been presented or determined an
application for a declaratory order, for any form of recon-
sideration, or, unless the agency otherwise requires by
rule and provides that the action meanwhile is inoperative,
for an appeal to a superior agency or authority. (5 United
States Code § 104).
The “legal wrong” contemplated by the Administrative
Procedure Act is something more than the mere personal
damage normally contemplated in the law of torts. The
damage necessary to constitute legal wrong under theprovisions of the Administrative Procedure Act must pro-
duce some illegal effect and be demonstrably contrary to
law in either substance or procedure. However, the law
considered relevant upon judicial review of agency action
under the Administrative Procedure Act is not only the stat-
utory law directly involved with the agency action, but gen-
eral constitutional law as well. The legal wrong necessary
to confer jurisdiction on the court and standing to the party
complaining can be the invasion of any legally protected
right.
Jurisdiction can also be obtained over agents and officers
of the United States Government such as contractors of the
Atomic Energy Commission, the Secretary of Agriculture,
the Secretary of Interior, and divisions and departments of
Federal agencies such as the Division of Wildlife Services,
the Bureau of Sport Fisheries and Wildlife, and the Bureau
of Land Management of the United States Department of the
Interior, the Corps of Engineers of the United States Army
of the Department of Defense, and the Federal Aviation
Administration and the Bureau of Public Roads of the
Department of Transportation.
There is a basic presumption in the law favoring judicial
review of agency or administrative action even where the
statute prescribing agency action does not on its face pro-
vide for judicial review. For the right of judicial review to be
denied, the agency must produce clear and convincing evi-
dence of legislative intent to foreclose judicial review. The
Supreme Court of the United States [Association of Data
Processing Service Organizations, Inc. v. Camp (1970) 397
US 150, 25 h Edzd 184, 90 SCt 827] has reemphasized the
presumption of judicial review of agency action in recent
litigation which construed the Administrative Procedure Act
not grudgingly but as serving a broadly remedial purpose
holding that “the mere failure to provide specially by stat-
ute tor judicial review is certainly no evidence of intent to
withhold review.”
No presumption in favor of “administrative absolutism”
and against judicial review exists. A congressional purpose
to preclude judicial review of agency action must be “fairly
discernable in the statutory scheme,” since the right to judi-
cial review is ordinarily inferred where congressional intent
to protect the interests of the class of which the complainant
is a member can be found.
Administrative action is not immune from judicial review
because it may be committed to agency discretion or simply
because the statute authorizes a public official to “prescribe
such regulations as he may deem proper to carry out the pro-
visions of [the legislation].”
The right to judicial review of agency action is all that
stands between the citizen and government by administra-
tive fiat not subject to correction by the elective process.
Although a court usually will not substitute its judgement
for that of an administrative agency, it can compel the proper
exercise of statutory authority by the agency, since it is not
for the administrative agency to finally determine the limits
of its own power. That is a judicial function.
Where a party aggrieved has no other adequate remedy
following administrative action there is certainly the right,C012_001_r03.indd 594C012_001_r03.indd 594 11/18/2005 10:33:18 AM11/18/2005 10:33:18 AM