Climate Change Project

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Administrative Law - Winter 2001

Setting Aside Agency Actions

Under the ABA interpretation, agency action should be set aside when: 

(1) The action exceeds the authority by, or violates limitations imposed by-- 

(A) the Constitution; 

(B) a federal statute; 

(C) an agency rule having the force of law; 

(D) federal common law; 

(E) any other source of law that is binding upon the agency. 

(2) The agency has relied on factors that may not be taken into account under, or has ignored factors that must be taken into account under [the Constitution, federal statutes, agency rules, or federal common law]. 

(3) The action rests upon a policy judgment that is so unacceptable as to render the action arbitrary. 

(4) The action rests upon reasoning that is so illogical as to render the action arbitrary. 

(5) The asserted or necessary factual premises of the action do not withstand scrutiny under the [scope of review applied to formal or informal proceedings]. 

(6) The action is, without good reason, inconsistent with prior agency policies or precedents. 

7) The agency arbitrarily failed to adopt an alternative solution to the problem addressed in the action. 

(8) The action fails in other respects to rest upon reasoned decisionmaking. 

reprinted in 38 ADMIN. L. REV. at 235.

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