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Judical Review Under the APA of Agency Inaction in Contravention of a Statutory Mandate: <i>Norton v. Southern Utah Wilderness Alliance</i>

May 2004

Citation: ELR 10443

Author: William D. Araiza and Robert G. Dreher

Norton v. Southern Utah Wilderness Alliance, presently before the U.S. Supreme Court on appeal from the U.S. Court of Appeals for the Tenth Circuit, raises a fundamental issue of administrative law: whether the federal courts have jurisdiction under the Administrative Procedure Act (APA) to review inaction by a federal agency when that inaction violates a nondiscretionary statutory mandate imposed by the U.S. Congress. That question goes to the heart of modern administrative law, which is fundamentally concerned with the relationships among agencies, other institutions of government, and the public, and in particular with the legal principles that constrain and direct the actions of administrative agencies to ensure their fidelity to policies established by law.

Judicial review is central to the rule of law, serving as an essential check on administrative action that disregards legislative mandates or constitutional rights. For this reason, the courts have long recognized a presumption in favor of providing judicial review of executive action. The modern understanding of administrative law recognizes that agency inaction that is in dereliction of a statutory command can inflict injury on legally protected interests that is as damaging as affirmative agency action taken in violation of statutory limitations. For these reasons, the APA explicitly provides for judicial review of an agency's failure to act.

William Araiza is a Professor at Loyola Law School, Los Angeles. Robert Dreher is Deputy Executive Director of the Georgetown Environmental Law and Policy Institute, Georgetown University Law Center.

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