LEGAL ASPECTS OF THE ENVIRONMENT 595
upon proper application, to judicial review of agency action.
Some confusion existed in the Federal Courts for a number of
years after the passage of the Administrative Procedure Act
because the provisions for judicial review apply, “According
to the provisions thereof, except to the extent that agency
action is committed to agency discretion by law” (5 United
States Code § 701).
Some Federal Courts held that agency action involv-
ing the exercise of discretion could not be reviewed for any
reason under the Administrative Procedure Act, however,
the majority of Federal Courts have adopted the rule that
any agency action, even that involving the exercise of discre-
tion and dependent upon the special technical and scientific
expertise of the agency, is subject to judicial review to the
extent provided by the Administrative Procedure Act. The
mere fact that the acts of some administrative official, even
a cabinet-level Secretary, require the exercise of discretion
and judgment does not preclude judicial review of official
action. Any contrary decision would lead to establishment of
a shadow government by administrative officials not subject
to popular election or judicial review and therefore totally
outside the systems of checks and balances so carefully
developed during the Constitutional Convention. The rights
and the public must receive active and affirmative protection
at the hands of the administrative agencies.
Much environmental litigation has involved the stand-
ing of parties to bring suit against administrative agencies,
their officials, employees and agents. Recent decisions have
established the right of public benefit organizations whose
purposes include protection of the environment, or protec-
tion the lives, health, and property of human beings or ani-
mals, as well as individuals seeking to proceed in the public
interest as “private attorneys general,” to bring actions to
persons “adversely affected” or “parties aggrieved” without
the meaning of the Administrative Procedure Act.
Neither economic injury nor a specific individual legal
right are necessary adjuncts to standing. A complain-
ant need only demonstrate that it is an appropriate person
(corporate or human) to question the alleged failure of an
agency to protect those values recognized by law as in the
public interest.Environmental Protection AgencyBy virtue of the executive authority to reorganize Federal agen-
cies, President Nixon created an Environmental Protection
Agency to which was transferred, effective December 2,
1970, significant environmental responsibilities formerly
scattered throughout the several executive and administrative
branches of government.Sec. 2 Transfers to Environmental Protection Agency.
(a) There are hereby transferred to the Administrator [of
the Environmental Protection Agency].1) All functions vested by law in the Secretary of
the Interior and the Department of the Interior
which are administered through the FederalWater Quality Administration, all functions
which were transferred to the Secretary of the
Interior by Reorganization Plan No. 2 of 1966
(80 Stat. 1608), and all functions vested in the
Secretary of the Interior or the Department of the
Interior by the Federal Water Pollution Control
Act or by provisions of law amendatory or sup-
plementary thereof.
2) (i) The functions vested in the Secretary of the
Interior by... 16 USC 742d-1 (being an Act
relating to studies on the effects of insecti-
cides herbicides, fungicides, and pesticides
upon the fish and wildlife resources of the
United States), and (ii) the functions vested
by law in the Secretary of the Interior and
the Department of the Interior which are
administered by the Gulf Breeze Biological
Laboratory of the Bureau of Commercial
Fisheries at Gulf Breeze, Florida.
3) The functions vested by law in the Secretary
of Health, Education, and Welfare or in the
Department of Health, Education, and Welfare
which are administered through the Environmental
Health Service, including the functions exercised
by the following components thereof:
i) The National Air Pollution Control
Administration,
ii) The Environmental Control Administration;
A) Bureau of Solid Waste Management,
B) Bureau of Water Hygiene,
C) Bureau of Radiological Health,
except that functions carried out by the following com-
ponents of the Environmental Control Administration
of the Environmental Health Service are not transferred:
(i) Bureau of Community Environmental Management,
(ii) Bureau of Occupational Safety and Health, and
(iii) Bureau of Radiological Health, insofar as the func-
tions carried out by the latter Bureau pertain to (A) reg-
ulation of radiation from consumer products, including
electronic product radiation, (B) radiation as used in the
healing arts, (C) occupational exposures to radiation, and
(D) research, technical assistance, and training related to
clauses (A), (B), and (C).
4) The functions vested in the Secretary of Health,
Education, and Welfare of establishing tolerances
for pesticide chemicals under the Federal Food,
Drug and Cosmetic Art, as amended, 21 USC 346,
346a, and 348, together with authority, in connec-
tion with the functions transferred, (i) to monitor
compliance with the tolerances and the effective-
ness of surveillance and enforcement, and (ii) to
provide technical assistance to the States and con-
duct research under the Federal Food, Drug, and
Cosmetic Act, as amended and the Public Health
Service Act, as amended.C012_001_r03.indd 595C012_001_r03.indd 595 11/18/2005 10:33:19 AM11/18/2005 10:33:19 AM