Standards Of Review

The APA (5 USC §§501-706) provides a statutory basis for the review of agency actions, with two exceptions.8

6. The Fourteenth Amendment to the U.S. Constitution contains similar language: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law. ..."

7. See Baltimore Gas and Electric Co. v. Natural Resources Defense Council NRDC), 462 U.S. 87 (1983); Chevron U.S.A., Inc. v. NRDC,

467 U.S. 837 (1984); Vermont Yankee Nuclear Power Corp. v. NRDC,

The APA (5 USC §701[a]) does not apply "to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law."9 The first exception applies, for example, where a statute explicitly precludes review. The second exception has been clarified by judicial interpretation.

The Citizens to Preserve Overton Park, Inc., v. Volpe (401 U.S. 402, 411 [1971]) case involved the second exception. In this case, the Court reviewed the secretary of transportation's authorization of funds to build a highway through a public park. The statute at issue allowed the secretary to use funds for highways except in situations where a feasible and prudent alternative was available. Environmentalists successfully argued that the secretary of transportation did not have the discretion to authorize the funds, as he maintained, and that he had not considered alternatives to the highway construction.

The Overton Park case emphasizes the arbitrary and capricious standard for nonadjudicative agency actions. This test establishes a minimum standard which agencies must meet to justify their decisions. In reviewing the record upon which an agency bases its decision, a court must find some basis for the agency's decision. If no basis exists for the agency's decision within the record, a court can hold that the agency was arbitrary and capricious, i.e., that it failed to meet the minimum standard for justifying its decision. In the Overton Park case, the Supreme Court found a sufficient basis for overturning the lower court's decision that upheld the original agency action.

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