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Two Sides of the Same Coin: Judicial Review Under APA Sections 706(1) and 706(2)


Eric Biber


University of California, Berkeley - School of Law

April 21, 2007

UC Berkeley Public Law Research Paper No. 981961

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. Building on a framework developed in a separate paper that identifies judicial deference to agency resource allocation decisions as a crucial factor in this field, this paper applies that framework to provide 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 action under Section 706(2) of the APA and of agency inaction under Section 706(1). 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 understood as the result of judicial deference to agency resource allocation.

Keywords: administrative law, environmental law, agency inaction, resource allocation, reviewability

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Date posted: February 2, 2010  

Suggested Citation

Biber, Eric, Two Sides of the Same Coin: Judicial Review Under APA Sections 706(1) and 706(2) (April 21, 2007). UC Berkeley Public Law Research Paper No. 981961. Available at SSRN: http://ssrn.com/abstract=981961 or http://dx.doi.org/10.2139/ssrn.981961

Contact Information

Eric Biber (Contact Author)
University of California, Berkeley - School of Law ( email )
Boalt Hall
Berkeley, CA 94720-7200
United States
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