Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction

44 Pages Posted: 21 May 2008

See all articles by Eric Biber

Eric Biber

University of California, Berkeley - School of Law

Abstract

Judicial review of agency inaction under Section 706(1) of the Administrative Procedure Act (APA) has been often been doctrinally incoherent and unclear. There is confusion about proper standard of review, the distinction between agency action and inaction, and the full scope of the presumption of unreviewability for agency non-enforcement decisions laid out by the Supreme Court in Heckler v. Chaney. The result is not just problematic on an abstract level - judicial review of agency inaction is increasingly important in regulatory fields such as environmental law, as shown by the Supreme Court's recent decision in Massachusetts v. EPA that rejected the Environmental Protection Agency's claim that it had no jurisdiction to regulate greenhouse gases produced by automobiles. This paper applies a framework that identifies judicial deference to agency resource allocation decisions as a crucial factor in administrative law, and uses that framework to bring coherence and clarity to the doctrine of judicial review of agency inaction. In particular, the paper shows that there is no fundamental difference between judicial review of agency inaction or action under the APA. The same underlying principles of administrative law apply in both circumstances, with the level of deference varying depending on the importance that resource allocation plays in the agency's decision. Likewise, a wide range of exceptions to judicial review of agency decisions that the Supreme Court has carved out can be properly understood as the result of judicial deference to agency resource allocation.

Suggested Citation

Biber, Eric, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction. Virginia Environmental Law Journal, Vol. 26, No. 3, 2008, Available at SSRN: https://ssrn.com/abstract=1134959

Eric Biber (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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