Commercial Litigation and Arbitration

Judicial Review of Presidential Proclamations under the Administrative Procedure Act

From Western Watersheds Project v. Bureau of Land Management, 2009 U.S. Dist. LEXIS 50382 (D. Ariz. June 12, 2009):

[Footnote 2] The Court emphasizes that this is a unique case; it is one of first impression. The Court has discovered no case in which the plaintiff's claims for relief were asserted solely under a presidential proclamation, as opposed to statutes that imposed independent statutory obligations on agencies. The only other case in which the plaintiff asserted a claim for relief directly under a proclamation appears to be California ex rel. Lockyer v. U.S. Forest Service, 465 F. Supp. 2d 917 (N.D. Cal. 2006). However, there, the district court explicitly declined to consider the plaintiff's "purported[ ] claim under the [APA], alleging that '[t]he Forest Service's failure to comply with the Proclamation constitutes arbitrary and capricious agency action," as the plaintiff had also asserted a claim under NEPA; "the Court will address these arguments only under NEPA." ***

iii. Two Possible Avenues of Review

In certain circumstances, judicial review is available under the Administrative Procedures Act to challenge final agency action or inaction that allegedly violates executive orders and presidential proclamations. Specifically, in City of Carmel-By-The-Sea v. U.S. Dept. of Transp., the Ninth Circuit held that "[u]nder certain circumstances, Executive Orders, with specific statutory foundation, are treated as agency action and reviewed under the Administrative Procedure Act." 123 F.3d 1142, 1166 (9th Cir. 1997); see City of Albuquerque v. U.S. Dept. Of Interior, 379 F.3d 901, 913 (10th Cir. 2004) ("If an executive order has a specific statutory foundation it is given the effect of a congressional statute."); Indep. Meat Packers Ass'ns v. Butz, 526 F.2d 228, 234 (8th Cir. 1975) (same). The Ninth Circuit defines those "certain circumstances" as executive orders that set objective standards and do not preclude judicial review. City of Carmel-By-The-Sea, 123 F.3d at 1166 ("The Executive Orders here do not preclude judicial review and there is 'law to apply,' as these Executive Orders set objective standards.").

There appear to be two ways in which agency action taken pursuant to an executive order or presidential proclamation may be subject to judicial review under the APA: (1) where Congress explicitly delegates authority to the President to issue directives to an agency, or (2) where the agency directives in a presidential order or proclamation "rest upon statute," i.e., the directives are issued in accordance with or in furtherance of agency action that is specifically authorized or required by statute. LASAC, 608 F.2d at 1330 n. 15. Compare City of Albuquerque, 379 F.3d at 913-14 (agency action taken pursuant to Executive Order No. 12072 was subject to judicial review under the APA because Congress specifically delegated to the President the authority to "prescribe such policies and directives" pursuant to the Federal Property and Administrative Services Act of 1949 ("FPASA"), as amended, 40 U.S.C. § 486(a)) with City of Carmel-By-The-Sea, 123 F.3d at 1166 (agency compliance with Executive Orders No. 11988 and 11990 were subject to judicial review under the APA because the executive orders rested on, i.e., were issued in furtherance of, among other statutes, the National Environmental Policy Act of 1969 ("NEPA"), as amended, 42 U.S.C. § 4321 et seq., which required the Federal Highway Administration to issue an environmental impact statement despite the fact that NEPA, unlike FPASA, does not specifically delegate to the President the authority to issue directives concerning agency action).

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