In Praise of a Skeletal Apa: Norton V. Southern Utah Wilderness Alliance, Judicial Remedies for Agency Inaction and the Questionable Value of Amending the Apa

Abstract

This Article, part of a symposium on amending the Administrative Procedure Act, considers that topic through the lens of a case recently decided by the Supreme Court, Norton v. Southern Utah Wilderness Alliance. Southern Utah dealt with the availability of judicial review to remedy agency inaction, in particular, the Bureau of Land Management's failure to act to manage public lands in conformance with its statutory mandate. This Article uses that case as an example of the difficulties that might attend attempts to amend the APA. After the Introduction briefly presents Southern Utah, Part I discusses how proper resolution of the reviewability and remedy issues it poses depend heavily on the particular type of statutory duty alleged to have been neglected. Part II builds on that discussion to argue that the diversity of types of agency actions that exist today make it difficult to codify more precise statutory guidance with regard to both reviewability and deference standards. Part III concludes by considering the appropriate scope of and subject matter for statutory amendments.