Determining when an adverse administrative agency action may be appealed presents environmental lawyers with a technical but vexing problem. If a challenge is filed too early, it will be dismissed, the associated litigation costs will be unrecoverable and the relationship with the agency will be potentially impaired. On the other hand, delaying commencement of an appeal may fail to prevent or halt injury to the client and may render a subsequent appeal untimely.
An appeal of a federal agency action is governed by any requirements specified in the statute authorizing the agency action. In the absence of specific statutory provisions addressing an appeal, a person aggrieved by the agency action may invoke Section 704 of the Administrative Procedure Act (APA), which authorizes judicial review of “final agency action for which there is no other adequate remedy.”
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