1. Reviewability – General Principles SCT – APA has a general presumption of judicial review UNLESS: 1.Statutes preclude judicial review – Sec. 701(a)(1) Congress must make intent to preclude clear and SCT heavily disfavors preclusion of constitutional claims 2.Action is committed to agency discretion by law - Sec. 701(a)(2) Overton Park - statutes are unreviewable when they are drawn in such broad terms that in a given case there is no law to apply. Courts usually cite to Overton Parks standard Whether they actually apply that standard is a different question – see Webster v. Doe Applied standard that looked more like preclusion – focused on congressional intent – although said were applying Sec. 701(a)(2)

2. Committed to Agency Discretion – Resource Allocation & General Appropriations Statutes Ps challenge IHSs decision to w/draw funds from Indian Childrens Program which provided diagnostic and treatment services for Native American children in the SW. IHS received funds as part of a larger lump sum allocation. IHS had requested funds specifically for such a program; Congress never gave a line-item allocation. Some legislative history suggested Congress wanted a special program despite the failure of a line-item allocation. SCT ruled that as long as IHSs decision to allocate funds within a larger lump sum allocation was designed to meet permissible statutory objectives, it was unreviewable under Sec. 701(a)(2). SCTs reasoning (no law to apply) – w/ allocation of funds from a lump sum appropriation, agency must engage in a complicated balancing of factors and have the capacity to meet changing circumstances. Courts shouldnt interfere with such obviously discretionary decisions. Note also reference (p. 295 2 nd para) to certain categories of decisions committed to agency discretion

3. Committed to Agency Discretion By Law – a summary While courts (including SCT) almost always invoke the traditional test, its not clear that is the test they are applying. The better way to think about this exception to reviewability is to know that it is not applied that often. When it is, it is applied to certain categories of action where courts feel especially at a loss re review 1.Refusal to institute enforcement actions (like prosecutorial discretion) – Heckler v. Chaney 2.Allocation of funds not specifically earmarked – Lincoln v. Vigil 3.Agencies where national security interests are directly implicated – Webster v. Doe Note how similar Norton v. SUWA reasoning re agency action is to this: Cant compel BLM action because the statute has no specific mandate and the management plan has nothing other than aspirational goals; combined with agency need to balance conflicting desires – judges have no role

4. Committed to Agency Discretion – Agency Regulatory Inaction Courts are reluctant to review agency inaction re enforcement decisions BUT agency inaction regarding regulation – i.e., the decision not to enact a rule – is rarely deemed unreviewable Consider EPAs refusal to enact rules regulating greenhouse gases in Mass. v. EPA – SCT denied that Heckler v. Chaney presumption applied to denial of petition to initiate a rulemaking. Why would the courts treat these differently? Agency refusals to initiate rulemakings are less frequent than refusals to initiate enforcement proceedings Agency refusals to initiate rulemakings are more likely based on legal concerns rather than facts Rulemakings are supposed to be informed by special formalities like public explanations (Sec. 553)

5. What is standing? The determination that a specific person/entity is the proper party to bring a matter to federal court This is rarely a problem when P is directly affected by agency action (license denial or rule enforcement) It is a harder question when P is more indirectly affected (i.e., argues that environmental regs hurt their enjoyment of environment) Standing requirements Constitutional Standing (3-prong inquiry) Minimal requirement in every case – must have it to bring a federal lawsuit – but it is only the first step – Congress can limit standing. Legislative standing Congressional definition of a class of Ps who can sue Only an issue with statutory claims Why do we care whether someone is the proper party to bring suit?

6. Standing Under APA § 702 – Legislative Standing Requirements APA Section 702: person may bring a lawsuit against an agency if: He has suffered a legal wrong because of agency action OR He is adversely affected or aggrieved... within the meaning of a relevant statute Original interpretations of these phrases were heavily influenced by the common law approaches on the next two slides:

7. Original Interpretation of APA Sec. 702 - the legal right requirement When can P show a legal wrong under Sec. 702 A person had standing only if their constitutional or common law rights were violated – i.e., breach of contract, fiduciary duty, violation of tort law or constitutional obligation – or if a statutory right conferred on them was violated. Ex: Statute authorizes FCC to grant radio broadcast licenses in a particular area. FCC wrongfully grants a license to Station A in that area. Station B already has a license and wants to challenge FCCs grant of a license to Station A because Station A will increase competition and decrease ad revenue to Station B. Station B likely has no APA standing because no common law/constitutional obligation was breached & courts rarely read statutes to protect a business from competition.

8. Original Interpretation of APA § 702 - the legal right requirement. Contd Ps who were unable to show a legal wrong in the 1 st part of Sec. 702, could possibly prevail under the 2 nd part if they could show they were: Adversely aggrieved w/in meaning of relevant statute phrase If a statute had a special review provision broadly allowing lawsuits – SCT could read it as allowing lawsuit under the second phrase of Sec. 702 and conclude that the legal right/wrong test was met. Federal Comm. Act – Any person aggrieved or whose interests are adversely affected by any decision of the Commn can file lawsuit So station B might be able to sue under the second part of Sec. 703 due to the FCAct

9. Assn of Data Processing Serv. Orgs. v Camp – the modern approach to legislative standing Section 4 of the Bank Serv. Corp. Act bars bank service corps from providing any service other than bank services for banks Comptroller of Currency allowed national banks to provide data processing services incident to their national banking services Ps (data processing providers) sued claiming that the decision violated Section 4 Data Processings approach: Did P allege Ds actions cause Ps injury-in-fact? (constitutional issue) Did the Ps satisfy statutory standing? Inquiry: Is the interest sought to be protected by the complainants arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee. (APA issue)

10. Legislative/Statutory Standing After Data Processing – some details Data Processings zone of interest test collapsed legal wrong & special review statute requirements of Sec. 702 into one inquiry: Is the plaintiffs interest within the zone of interests the relevant statute is meant to protect? SCT has generously interpreted zone of interests requirement post- Data Processing Only rarely has it held someone outside of the zone of interests The relevant statute to which Data Processing refers is much broader than the special review statute in the original approach of Sec. 702. It can refer to any organic or other relevant statute.

11. Zone of Interests after Data Processing Zone of Interests – SCTs generous interpretations Are Ps interests marginally related and not inconsistent with the purposes of the statutes P seeks to enforce SCT has been willing to look for implicit purposes of variety of relevant statutes (Clarke) – most often the organic/enabling Act BUT SCT is unwilling to look at JUST ANY statute. Statutes must be related to issue over which P is suing (Air Courier) Role of special review statute & APA legislative standing If an organic/enabling statute has a broad standing provision (i.e., any person can bring a lawsuit), SCT has been willing to allow P to bring suit even if the lawsuit seems inconsistent w/the purpose of statute E.g., Bennett v. Spear (p. 308) – citizen suit provision allows ranchers to sue to prevent implementation of the Act

12. Constitutional Standing – (Lujan v. Defenders of Wildlife) Constitutional Standing: A threshold requirement for all federal litigants – must meet it to bring suit in federal court (but its only the first issue if suing under a statute) 3 Requirements of Constitutional Standing: Injury-in-Fact – concrete and particularized invasion of legally protected interest Injury must be fairly traceable to Ds conduct – need a causal connection between injury complained of & Ds behavior Injury must be one that can be redressed in court – must be likely that a favorable court decision will help P

13. Constitutional Standing - Injury-in-Fact What it means – P must show that he/she/they have sustained or is in real danger of sustaining concrete and particularized injury personal to them What kinds of injuries suffice? Injuries to common law, constitutional or statutory rights Aesthetic, environmental, recreational harms and competitive economic harms Lujan Ps potentially involve this second kind of harm – Ps wanted Secy of Interior to reissue a regulation requiring agencies to consult with Secy to ensure actions taken abroad would not jeopardize endangered species. Ps claim an interest in observing such species that will be harmed without consultation since might cause extinction.

14. Constitutional Standing - Injury-in-Fact (through the lens of Lujan) Why didnt Lujan Ps satisfy the injury-in-fact prong on these allegations? SCT accepts that there may be cognizable harm to endangered species as a result of govt action – i.e., lack of consultation will increase rate of extinction. BUT that is not enough. Party seeking review [must] be himself among the injured. Ps allegations that they had visited or may someday travel to observe these species was insufficient to show injury. Must show LIKELY to visit damaged ecosystems SOONish – SCT wants to see concrete plans. What would they need to do to satisfy the majority? NOT enough that Ps job is generally to work with endangered species (animal/vocational nexus) absent more concrete allegation of how job is harmed by agency action. If Ps purchased a plane ticket to show were imminently about to return to study animals, would that satisfy SCT? Does this make sense or is it an empty formality as the dissent argues?

15. Constitutional Standing – Causation (through the lens of Lujan) What it means – injury must be fairly traceable to Ds conduct – need a causal connection between injury & Ds behavior Assume the Lujan Ps did have plane tickets – so that they could show injury-in-fact. Could they have shown that their harm was fairly traceable to the governments action? Consider the following: If a consultation provision existed and applied, and USAID funds were stopped to overseas projects, isnt it still likely that the other countries projects will continue with their own funds and that endangered species will still be threatened with extinction as a result? (In other words, the US doesnt wield that big a stick.) How can Ps claim that any harm to their interests was fairly traceable to the agencys actions at that point? Note - SCT approaches this issue as a redressability issue – its easy to frame questions as either causation or redressability

16. Constitutional Standing – Redressability (through the lens of Lujan) What it means - Can the injury complained of be redressed by a favorable court decision? Lujan majority held that Ps injury could not be redressed w/ court action? 1.USAID only provides minimal funding for foreign project. Cutting off funds for projects that endanger species will likely have little to no effect on the overall project. 2.Agencies funding the foreign projects werent parties to the lawsuit – a declaration/injunction binding the Secy (requiring a revision of his regulation) has no effect on them Is it plausible re the latter argument to assume that govt actors w/ knowledge of a court order and statutory requirements of consultation wouldnt perform that obligation (even if they werent parties to the lawsuit)?