Exhaustion of Administrative Remedies: The Lesson from Environmental Cases

67 Pages Posted: 31 Oct 2010

See all articles by Marcia Gelpe

Marcia Gelpe

Mitchell Hamline School of Law

Date Written: 1985


The law governing exhaustion of administrative remedies is complex and confusing and fosters needless litigation: litigation that is burdensome to the courts and costly to defendants, that adversely affects agency decision making and that by its very existence, wrongly influences courts to dispense with the exhaustion requirement. Exhaustion remains troublesome to the courts; many of the decisions are confusing and poorly reasoned. A reexamination of the exhaustion doctrine is called for, not only to indicate how the cases should be decided, but also to clarify the issues sufficiently to guide parties' behavior so that they may avoid litigation over exhaustion's requirements. This Article undertakes such an examination, focusing on exhaustion as it arises in environmental cases. This Article examines the rationale underlying the exhaustion requirement. It finds that good reasons support the requirement, though not necessarily the same reasons that are usually recognized.

Requiring exhaustion helps agencies avoid the cost of making decisions without all interested parties present; increases accuracy, consistency, and public acceptability of administrative decisions; conserves judicial resources; discourages forum shopping; protects all interested parties' rights to be heard; provides greater expertise in fact finding; and keeps policy judgments closer to the sphere of political influence. The Article then examines the problems that occur when parties litigate over exhaustion and illustrates the need for much greater clarity on exhaustion law than is usually recognized. Finally, the Article analyzes the exceptions to the exhaustion requirement. It recommends abolishing most of the common exceptions and narrowly limiting the others.

Keywords: Nader v. Nuclear Regulatory Commission, Reserve Mining Co. v. Minnesota Pollution Control

Suggested Citation

Gelpe, Marcia, Exhaustion of Administrative Remedies: The Lesson from Environmental Cases (1985). George Washington Law Review, Vol. 53, 1985, Available at SSRN: https://ssrn.com/abstract=1699900

Marcia Gelpe (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

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