The Long Shadow of Judicial Review
20 Pages Posted: 25 Apr 2018
Date Written: April 25, 2018
This Comment posits that judicial review casts a shadow over all that administrative agencies do, even while admitting, at least for the sake of argument, that such review does not apply to various agency activities, some of which are identified by the principal papers in the Land Use and Environmental Law Journal symposium: “Environmental Law Without Courts.” The aspects of the shadow of judicial review that this paper explicitly discusses, but which do not exhaust the totality of that shadow, involve three different effects of such review. First, even if agencies are free from meaningful review in choice of procedures beyond those specified by statute or required by the Constitution, this Comment contends that substantive review over the ultimate agency action can significantly impact the agency choice of procedure to increase agency accountability for such choice. Second, in those cases where courts have remanded an agency action while failing to provide any explicit instruction whether the agency should continue to pursue the action, the threat of further substantive review is one of the most important factors in the agency decision whether to do so. Finally, even for an action clearly not subject to any direct judicial review — in particular, agency participation in drafting statutes authorizing or defining the scope of agency action — judicial review affects the administrative-legislative interaction by influencing the way that agencies staff their regulatory teams. The thesis of this Comment is thus broad but easy to state: judicial review of agency action casts a long shadow over all that agencies do, and one cannot meaningfully talk of Environmental Law (or any regulatory law) in the absence of courts.
Keywords: Regulation, Procedure, Judicial Review, Legislation
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