Table of Contents

(1) Is the case reviewable at this time at the behest of this plaintiff? 3

(a) Standing 3

(b) Reviewability 5

(c) Finality, (d) Ripeness, (e) Exhaustion 7

(f) Primary jurisdiction 8

(2) Is there a constitutional problem? 9

(a) Nondelegation 9

(b) Role of the President 10

Appointments 10

Removal 10

Directive and supervisory authority 11

(c) Article III 12

(3) Is the agency’s interpretation of the statute lawful? 13

Step 0: Does Chevron apply? 13

Chevron Step One 14

Chevron Step Two 15

Auer: Agency Interpreting Its Own Regulations 16

(4) Has the agency acted arbitrarily or abused its discretion in making policy determinations? 17

Arbitrary and capricious cost-benefit analysis 18

(5) Has the agency properly found the facts? 20

(6) Has the agency followed appropriate procedures? 21

Must the agency go through formal proceedings? Have the formal provisions of the APA been triggered by the statute? 21

Informal rulemaking (N&C) 21

Exceptions to §553 notice and comment requirements in informal rulemaking 23

General statements of policy 23

Good cause 24

Foreign affairs 25

Interpretive rules 25

Ways to make rulemaking faster 26

Direct, final rulemaking 26

Interim final rule 26

Remand without vacating 27

Negotiated rulemaking 27

Has the agency followed its own regulations? 28

Retroactivity problem? 28

Economic bias violative of due process? 28

Has the agency separated its functions internally, if required to do so? 28

Does the Due Process Clause require rules or a hearing? 29

When does the due process clause require standards, as opposed to case-by-case adjudication? 29

When does the due process clause require a hearing? (Londoner cases) 30

Did the agency permissibly choose between rulemaking or adjudication (if not required by APA or statute)? 31

Has the agency complied with the ban on ex parte contacts? 32

(1) Is the case reviewable at this time at the behest of this plaintiff?

(a) Standing

When the plaintiff is themselves the object of the action or forgone action, there is ordinarily little question of standing. But when the asserted injury arises from the government’s regulation or non-regulation of someone else, much more is needed (Lujan).

• A state receives “special solicitude” in asserting standing to challenge an agency action in federal court, such that the traditional requirements are relaxed (Mass. v. EPA).

After Data Processing, standing to challenge an agency decision requires that the plaintiff satisfy Article III requirements and prudential requirements. The Article III requirements are that (1) the plaintiff must show an injury in fact, (2) the injury must have been caused by the challenged action, and (3) it must be possible for a victory on the merits to redress the injury.

To meet the injury in fact requirement, the injury must be concrete and particularized, and, if it has not already occurred, must be actual and imminent (Lujan).

• Procedural rights: Under Lujan, a person accorded a procedural right to protect their concrete interests can assert that right without meeting all the standards of redressability and immediacy. Thus, the plaintiff may have standing to challenge the agency’s failure to carry out [procedure in question] without showing that [the procedure] would cause the agency to change [agency action], and even if the results of the [agency action] would not come to fruition for many years.

Here, plaintiff may argue that the injury in fact is [XYZ], which is concrete (rather than abstract or ideological), and affects plaintiff particularly.

• Concrete

  • The injury does not need to be economic or physical. It can be a dignity interest, for example.

  • Lujan forecloses citizen suits where the interest is purely ideological.

  • Abstract stigmatic injuries, without more, are insufficient to establish concrete injury (Allen).

  • Aesthetic injury can be concrete (Duke Power).

• Particular

  • The injury is particular if it affected the plaintiff in a personal and individual way (Lujan).

  • While the dissent in Mass. v. EPA states that the particularity requirement means that injury cannot be widely shared, under Akins “where a harm is concrete, though widely shared, the Court has found injury in fact.”

• Actual or imminent

  • Under Lujan, injuries are speculative unless the plaintiff “bought the ticket to see the critters.” Showing that the plaintiff regularly [goes to some place or does something] could be sufficient. Otherwise, the plaintiff may need to have actually [purchased the ticket, made plans or done whatever] in order for the injury to be actual and imminent.

  • The injury must be certainly impending, and actions taken to avoid a merely probably harm are insufficient to constitute an actual or imminent injury.

• Heightened risk or lost opportunity

  • A substantially increased risk of harm and a substantial probability that the harm will in fact occur can constitute an injury in fact (Public Citizen). Other cases have indicated that a “reasonable probability” of harm resulting from the agency action was sufficient (Monsanto). This is particularly true where the purpose of the regulation is to reduce risk, not certainty of harm.

  • However, a statistical likelihood that at least one member of an organization will suffer actual injury is not sufficient for standing (Summers).

The injury must also meet the “nexus” requirements of causation and redressability.

• Causation:

  • The injury will meet the causation requirement since it is fairly traceable to the challenged action of the defendant, and does not result from the independent action of some third party (Simon).

  • The case may not meet the causation requirement, since the connection between [injury] to [mediator] to the [agency action] is attenuated and may not be fairly traceable to the challenged action (Simon).

• Redressability

  • The case will satisfy redressability, since a favorable decision would [reduce the risk even a little (Mass v. EPA)/cause X to do Y/prevent the injury].

  • The case may not meet...

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