The Administrative Procedure Act and The Evolution of Environmental Law

Abstract

Judicial Review of Federal Agencies before the Advent of the APA While there were ad hoc reviews of federal agency actions before the APA was enacted, there was no uniform approach to judicial review in the federal courts. The explosive growth of the "Administrative state" spurred by the New Deal legislation of the 1930s, the enactment of the Federal Register Act to create an official government "Gazette" for federal agency pronouncements, and the exigencies of World War II persuaded the Congress and the public that some kind of uniform federal agency practice should be enacted. Agency action made reviewable by statute "And final agency action" for which there is no adequate remedy in a court are subject to judicial review. If justice requires, either the agency or the reviewing court may postpone the effective date of an agency action and preserve the status quo. The court will compel agency action unlawfully withheld or unreasonably delayed; hold unlawful or set aside agency action that is arbitrary, capricious an abuse of discretion, or otherwise not in accordance with law; that is contrary to constitutional right; without observance of procedure required by law; unsupported by substantial evidence in a case subject to sections 5656or 557, or otherwise reviewed on the record; or unwarranted by the facts to the extent the facts are subject to trial de novo by the reviewing court. The early, pre-APA cases stated that agency decisions demanded respect, or more properly, "Skidmore Respect" as it came to be known: "We consider that the rulings, interpretations and opinions of the Administrator while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which the courts and litigants may properly resort for guidance." Indeed, the agency judgment may possess such strengths as give it "The power to persuade, if lacking the power to control." See Skidmore, et al. Per APA Section 704, an agency action to be judicially reviewable must be a "Final agency action." To be final, the action must mark the consummation of the agency's decision-making process, and be one by which rights or obligations have been determined, or from which legal consequences flow.