South-Western Legal Studies in Business

Agency Report Not Subject to Judicial Review
Description Appeals court held that an EPA report that labeled secondhand tobacco smoke as a carcinogen is not subject to judicial review because the report has no regulatory consequence. Courts may only review agency actions that are final and create legal rights or burdens.
Topic Administrative Law
Key Words Challenge; Final Action; Reviewability
C A S E   S U M M A R Y
Facts The Radon Act of 1986 required EPA’s administrator to have a research program on indoor air quality. As part of that program, the EPA is required to have advisory committees to assist it in conducting the research. Congress specifically prohibited the EPA from issuing any regulations under the act. The EPA issued a report that classified secondhand tobacco smoke as a known human carcinogen. The tobacco industry sued to challenge the legality of the report and the classification of secondhand smoke as a carcinogen. The industry argued that the EPA violated the act by not having an advisory committee involved in the production of this report. The district court agreed. The EPA appealed.

Reversed. Such a report is not a "final agency action" that would be subject to court review. Hence, the district court lacked subject matter jurisdiction to hear the claim brought by the industry challenging the report. The report is to have no regulatory consequence. It does not create any direct regulatory effects, so it is not reviewable under the Administrative Procedures Act.

Citation Flue-Cured Tobacco Coop. Stabilization Corp. v. U.S. Environmental Protection Agency, 313 F.3d 852 (4th Cir., 2002)

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