Animal Legal Defense Fund v. Veneman ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANIMAL LEGAL DEFENSE FUND; 
ANIMAL WELFARE INSTITUTE;
VALERIE BUCHANAN; JANE
GARRISON; NANCY MEGNA,
Plaintiffs-Appellants, No. 04-15788

NATIONAL ASSOCIATION FOR D.C. No.
BIOMEDICAL RESEARCH, CV-03-03400-PJH
Intervenor-Appellee,
OPINION
v.
ANN M. VENEMAN; BOBBY R.
ACORD; CHESTER A. GIPSON,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
December 9, 2005—San Francisco, California
Filed November 22, 2006
Before: Alex Kozinski and William A. Fletcher,
Circuit Judges, and H. Russel Holland,* District Judge.
Opinion by Judge William A. Fletcher;
Dissent by Judge Kozinski
*The Honorable H. Russel Holland, Senior District Judge for the Dis-
trict of Alaska, sitting by designation.
18739
ANIMAL LEGAL DEFENSE v. VENEMAN 18743
COUNSEL
Bruce A. Wagman, Morgenstein & Jubelirer, San Francisco,
California; Howard M. Crystal, Katherine A. Meyer, Meyer
& Glitzenstein, Washington, D.C., for the plaintiffs-
appellants.
Robert A. Long, Covington & Burling, Washington, D.C., for
the intervenor-appellee.
John S. Koppel, Michael Jay Singer, United States Depart-
ment of Justice, Washington, D.C., for the defendants-
appellees.
18744 ANIMAL LEGAL DEFENSE v. VENEMAN
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs, who include the Animal Legal Defense Fund
(“ALDF”), the Animal Welfare Institute (“AWI”), and three
individuals, challenge the United States Department of Agri-
culture’s (“USDA”) decision not to adopt a Draft Policy that
would have provided guidance to zoos, research facilities, and
other regulated entities in how to ensure the psychological
well-being of nonhuman primates in order to comply with the
federal Animal Welfare Act (“AWA”). Plaintiffs challenge
the decision not to adopt the Draft Policy under the Adminis-
trative Procedure Act (“APA”) as arbitrary and capricious.
The district court did not reach the merits of plaintiffs’ suit
because it determined that the USDA’s decision did not con-
stitute reviewable final agency action. We disagree. We hold
that at least one of the plaintiffs has standing under Article III
of the Constitution, and we conclude that the district court has
authority under the APA to review the USDA’s decision not
to adopt the Draft Policy.
I. Background
A. Statutory and Regulatory Backdrop
Congress enacted the AWA in 1966 “to insure that animals
intended for use in research facilities or for exhibition pur-
poses or for use as pets are provided humane care and treat-
ment . . . .” 7 U.S.C. § 2131(1). As originally enacted, the
AWA left research facilities largely unregulated. See, e.g., 7
U.S.C. § 2143(a) (repealed 1985). In 1985, Congress
amended the AWA by enacting the Improved Standards for
Laboratory Animals Act, Pub. L. No. 99-198, 99 Stat. 1645.
This amendment to the AWA instructed the USDA to “pro-
mulgate standards to govern the humane handling, care, treat-
ment, and transportation of animals by dealers, research
facilities, and exhibitors.” 7 U.S.C. § 2143(a)(1). These stan-
ANIMAL LEGAL DEFENSE v. VENEMAN 18745
dards must “include minimal requirements . . . for a physical
environment adequate to promote the psychological well-
being of primates.” Id. § 2143(a)(2)(B). The Secretary pro-
posed a regulation containing these standards in 1989. See
Animal Welfare — Standards, 54 Fed. Reg. 10897, 10917
(proposed Mar. 15, 1989).
The 1989 proposed regulation would have imposed a num-
ber of detailed “minimum requirements” on regulated entities.
These included, for example, a requirement that “nonhuman
primates must be housed in primary enclosures with compati-
ble members of the same species or with compatible members
of other nonhuman primate species” unless doing so would
endanger the animal. 54 Fed. Reg. at 10944. As finally
adopted in 1991, however, the regulation, which requires reg-
ulated entities to create an “Environmental Enhancement
Plan” to benefit nonhuman primates, left the requirements for
these “primary enclosures” more vaguely defined. See gener-
ally 56 Fed. Reg. 6426 (1991), codified at 9 C.F.R. § 3.81.
The social grouping provision of the regulation, for example,
contains no specific instruction regarding the pairing or
grouping of animals. It leaves regulated entities considerable
discretion to house nonhuman primates as they see fit, pro-
vided that housing conditions accord with “currently accepted
professional standards, as cited in appropriate professional
journals or reference guides, and as directed by the attending
veterinarian.” 9 C.F.R. § 3.81(a).
In 1991, the ALDF challenged § 3.81 in the federal district
court for the District of Columbia, arguing that the regulation
violated the AWA by failing to impose minimum standards
for nonhuman primate conditions of confinement. In a deci-
sion later upheld by the D.C. Circuit, the district court con-
cluded that at least one of the plaintiffs had standing to
challenge the regulation based on an aesthetic injury he suf-
fered from witnessing the conditions of several nonhuman pri-
mates’ confinement. This plaintiff had “ ‘been employed and/
or worked as a volunteer for various human and animal relief
18746 ANIMAL LEGAL DEFENSE v. VENEMAN
and rescue organizations’ ” “[f]or his entire adult life.” Ani-
mal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 429
(D.C. Cir. 1998) (en banc) (“Glickman I”). This plaintiff had
visited a “game farm” covered by the statute at least nine
times, and had seen primates “living under inhumane condi-
tions” at the farm. Id. For example, he saw a large male chim-
panzee held in an isolated area. He stated in an affidavit that
he knew that chimpanzees “ ‘are very social animals and it
upset [him] very much to see’ ” this chimpanzee “ ‘in isola-
tion from other primates.’ ” Id. (alteration in original).
The district court struck down § 3.81 as arbitrary and capri-
cious and contrary to law. Animal Legal Def. Fund v. Sec. of
Agric., 813 F. Supp. 882, 892 (D.D.C. 1993). Reversing this
decision in 2000, the D.C. Circuit concluded that “[n]othing
in the [AWA’s] statutory mandate required greater specifici-
ty” than the allegedly vague requirements the regulation
imposed. See Animal Legal Def. Fund, Inc. v. Glickman, 204
F.3d 229, 235 (D.C. Cir. 2000) (“Glickman II”).
B. The Draft Policy
While the challenge to § 3.81 was pending before the D.C.
Circuit in what would become Glickman II, the USDA took
a survey of USDA inspectors responsible for § 3.81’s enforce-
ment. Based on this survey, it published a “Final Report on
Environment Enhancement to Promote the Psychological
Well-Being of Nonhuman Primates” (“Final Report”) on July
15, 1999.1 The Final Report noted that “[a]lmost half the
responding employees felt that the criteria in the regulations
were not adequate for [regulated] facilities to understand how
to meet them and for inspectors to judge if a facility was in
compliance.” Inspectors complained that § 3.81 provided
“few solid criteria” to judge compliance, and a “common
refrain” among those surveyed was that “too many enhance-
ment programs consisted of only one or two types of enrich-
1
The Final Report is available at http://www.aphis.usda.gov.
ANIMAL LEGAL DEFENSE v. VENEMAN 18747
ment . . . in an otherwise barren, stimulus-poor environment.”
Stressing the “urgency of these problems[,]” the Final Report
insisted that “[a] strategy had to be developed to fulfill the
original intent and language of the Animal Welfare Act . . . .”
On the same day the Final Report was issued, the USDA
published — apparently as a response to the report — a
“Draft Policy on Environment Enhancement for Nonhuman
Primates” in the Federal Register and opened a period for
public comment. 64 Fed. Reg. 38145 (July 15, 1999) (“Draft
Policy”). In the Draft Policy’s preface, the USDA explained
why it had not included more detailed requirements in § 3.81
for the treatment of nonhuman primates. See id. at 38146
(declaring that the USDA “intentionally made the regulations
regarding promotion of psychological well-being flexible”
because “the conditions appropriate for one species do not
necessarily apply to another”).
However, the preface continued, “after five years of experi-
ence enforcing § 3.81,” regulated entities “did not necessarily
understand how to develop an environment enhancement plan
that would adequately promote the psychological well-being
of nonhuman primates.” 64 Fed. Reg. at 38146. Hence, while
the USDA “continue[d] to believe that [§ 3.81’s] flexibility
. . . is in the best interests of the animals[,]” it also “believe[d]
that additional information on how to meet the standards in
§ 3.81 is necessary.” Id. This additional information would
remedy the “considerable disagreement” and “confusion”
among the public and regulated entities as to what § 3.81
required, and it would give agency inspectors a workable set
of enforcement criteria to apply. Id. In other words, the Draft
Policy would “clarify[ ] what actions [the USDA] consider[s]
necessary in order to comply with” § 3.81. Id.
The Draft Policy listed a number of specific features that a
regulated entity could usefully include in an environmental
enhancement plan. 64 Fed. Reg. at 38146. In particular, the
Draft Policy provided for a safe harbor within which regu-
18748 ANIMAL LEGAL DEFENSE v. VENEMAN
lated entities could be sure that they were in compliance with
the regulation and the AWA. It stated that if regulated entities
“develop and follow environmental enhancement plans that
are in accordance with the draft policy[,]” they would neces-
sarily “meet the requirements of § 3.81 . . . .” Id. Regulated
entities could adopt plans outside the safe harbor, however, so
long as the plans complied with the regulation and the AWA.
Id.
C. Procedural History
The Draft Policy remained just that — a draft — for several
years. In July 2003, plaintiffs, frustrated that the USDA had
failed to take any final action, sued the Secretary and other
USDA officials (collectively, the “USDA”) in federal district
court for the Northern District of California. They contended
that the USDA had failed to promulgate standards to “pro-
mote the psychological well-being of primates” in violation of
the AWA, 7 U.S.C. § 2143(a), and that its failure constituted
agency action “unlawfully withheld or unreasonably delayed”
in violation of the APA. 5 U.S.C. § 706(1). Plaintiffs sought
a declaratory judgment that the USDA was violating the
AWA and the APA, as well as an order requiring the USDA
to make a final decision with respect to the Draft Policy
within 30 days.
In response, the USDA filed a declaration from Dr. Chester
Gipson, the Deputy Administrator for Animal Care at the
USDA’s Animal Plant Health Inspection Service. Dr. Gipson
stated that, in his official capacity as Deputy Administrator,
he had made an oral announcement at a December 2002 con-
ference of industry and animal protection groups that the
“USDA was not going forward with the Draft Policy . . . .”
Dr. Gipson declared that he had repeated this oral announce-
ment at a similar March 2003 conference.
The National Association for Biomedical Research
(“NABR”), a non-profit organization representing universities
ANIMAL LEGAL DEFENSE v. VENEMAN 18749
and other entities subject to the AWA, intervened in the suit
under Rule 24(b). The USDA, joined by the NABR, then
moved to dismiss under Rule 12(b)(1), contending, inter alia,
that Dr. Gipson’s announcements that the agency would not
go forward with the Draft Policy rendered the suit moot, and
that in any event plaintiffs lacked standing under Article III.
Plaintiffs then amended their complaint to add an alterna-
tive claim, contending that Dr. Gipson’s oral statements con-
stituted final agency action under 5 U.S.C. § 704. They
alleged that this action was arbitrary, capricious, and an abuse
of discretion in violation of 5 U.S.C. § 706(2), in that it “fails
to articulate a basis for the agency’s decision that the [Draft]
Policy is no longer ‘necessary’ to fulfill the agency’s obliga-
tions under the AWA and also fails to address any of the evi-
dence and public comment demonstrating that the policy is
necessary to fulfill that statutory mandate.”
The district court granted the USDA’s motion to dismiss
the amended complaint. It concluded that the agency had no
further duty to act after the D.C. Circuit held in Glickman II
that § 3.81 adequately discharged the USDA’s obligation
under the AWA. Hence, in the view of the district court, the
USDA’s failure to finalize the Draft Policy did not constitute
an “unreasonable delay” in violation of APA § 706(1). The
district court also rejected plaintiffs’ § 706(2) claim that the
refusal to go forward with the Draft Policy had been arbitrary
and capricious. It held that Dr. Gipson’s oral announcements
did not constitute a “definitive policy statement,” and conse-
quently were not a reviewable “agency action” within the
meaning of § 706(2).
On appeal to us, plaintiffs primarily argue that the decision
not to go forward with the Draft Policy was a final “agency
action” under § 704, and that the district court erred by dis-
missing the challenge to Dr. Gipson’s statements as unreview-
able under § 706(2). In the alternative, they contend that the
USDA’s failure finally to decide the Draft Policy’s fate is an
18750 ANIMAL LEGAL DEFENSE v. VENEMAN
unreasonable delay within the meaning of § 706(1). The
USDA and the NABR contend that plaintiffs lack Article III
standing and that, if they have standing, their arguments under
the APA fail. Because the question of plaintiffs’ Article III
standing goes to our subject matter jurisdiction, we address it
first.
II. Standing
[1] The standing “inquiry involves both constitutional limi-
tations on federal-court jurisdiction and prudential limitations
on its exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975).
The USDA and the NABR contend that plaintiffs’ standing
fails on constitutional grounds.2 In order to satisfy Article III’s
standing requirements, a plaintiff must show:
(1) it has suffered an injury in fact that is (a) con-
crete and particularized and (b) actual and imminent,
not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defen-
dant; and (3) it is likely, as opposed to merely specu-
lative, that the injury will be redressed by a favorable
decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528
U.S. 167, 180-81 (2000) (internal quotation omitted). At the
motion to dismiss stage, allegations are presumed to be cor-
rect, and thus “general factual allegations of injury resulting
from the defendant’s conduct may suffice” to establish the
prerequisites for standing. Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992).
We hold that at least one plaintiff, Valerie Buchanan, has
2
The USDA also raises a perfunctory prudential standing challenge. The
agency has waived this argument by not raising it below. Bd. of Natural
Res. v. Brown, 992 F.2d 937, 946 (9th Cir. 1993) (prudential standing is
not jurisdictional and may be waived).
ANIMAL LEGAL DEFENSE v. VENEMAN 18751
standing under Article III. Buchanan is a “long-time volunteer
and advocate for primates” with experience working with
chimpanzees all over the world. Buchanan states that, begin-
ning in 2000, she has formed a “particularly close emotional
attachment” to Terry, a chimpanzee housed at the Southern
Nevada Zoological-Botanical Park. Buchanan visits Terry
“every other month” and states that she “will continue to do
so” in the future. Since 1995, Buchanan declares, Terry has
been housed alone, with no contact with other nonhuman pri-
mates. Terry is “listless” and engages in species-atypical
behavior. The only time Buchanan has seen Terry animated
is when his former trainer visits. When the trainer leaves,
“Terry climbs up in his cage and watches the trainer’s car
until it exits the parking lot.” Based on her expertise,
Buchanan believes that Terry’s psychological health is deteri-
orating. She expressed her concern about Terry to the USDA
in 2001. The agency responded that, while it “would prefer
that he have the companionship of another chimpanzee,” the
zoo was in compliance with the AWA and § 3.81.
Buchanan complains that Terry’s environment and species-
atypical behavior injure her interests in observing and enjoy-
ing chimpanzees. She states that, if the Draft Policy were
finalized, it “would improve the psychological well-being of
primates including Terry, thereby reducing the level of abnor-
mal, stereotypic and/or injurious behaviors exhibited by Terry
and other primates whom . . . Buchanan enjoys observing and
studying in humane conditions.” The USDA argues that
Buchanan’s asserted injury does not satisfy Article III. For the
reasons that follow, we disagree.
A. Injury-in-Fact
[2] “Harm to a plaintiff’s ‘aesthetic and environmental
well-being’ has long been recognized as a cognizable injury”
for the purposes of the injury-in-fact requirement. Fund for
Animals, Inc. v. Lujan, 962 F.2d 1391, 1396 (9th Cir. 1992)
(quoting Sierra Club v. Morton, 405 U.S. 727, 734 (1972)).
18752 ANIMAL LEGAL DEFENSE v. VENEMAN
“[T]he desire to use or observe an animal species, even for
purely esthetic purposes, is undeniably a cognizable interest
for purpose of standing.” Defenders of Wildlife, 504 U.S. at
562-63. The term “aesthetic” in ordinary usage refers to an
artistic sense or a sense of beauty. Our Article III standing
jurisprudence gives the term “aesthetic injury” a broader
meaning that includes emotional injury. For example, in
Glickman I, the D.C. Circuit held that the plaintiff — who had
stated that the treatment of the chimpanzee had “upset” him
“very much” — had suffered “aesthetic injury.” 154 F.3d at
431, 433.
[3] Buchanan’s aesthetic injury is virtually indistinguish-
able from the injury the D.C. Circuit found constitutionally
sufficient in Glickman I. Like Buchanan, the Glickman I
plaintiff asserted that he had suffered an “ ‘assault on [his]
senses’ ” and had been very upset when he viewed nonhuman
primates “living under inhumane conditions” during regular
visits to a particular zoo. 154 F.3d at 429-32. Like Buchanan,
whose many years of interest in chimpanzees underscore a
deep-seated concern for their health, the Glickman I plaintiff
had a long-term sustained interest in primate welfare, and had
personally visited and — more importantly — continued to
visit the animals whose condition caused him aesthetic injury.
Id. at 432. Hence, Buchanan, like the plaintiff in Glickman I,
has “alleged far more than an abstract, and uncognizable,
interest in seeing the law enforced.” Id.
The USDA urges us to disagree with the D.C. Circuit’s
holding in Glickman I. It asks us to restrict Article III aes-
thetic injury based on animal harm to situations where the
diminution or elimination of an animal species causes the
alleged harm. This is precisely the argument made by the dis-
sent in Glickman I. See 154 F.3d at 448 (Sentelle, J., dissent-
ing) (the “diminution-of-the-species” limit is necessary to
keep the “expanse of standing” from being “bounded only by
what a given plaintiff finds to be aesthetically pleasing”).
ANIMAL LEGAL DEFENSE v. VENEMAN 18753
The Glickman I majority expressly rejected this argument.
See 154 F.3d at 433 n.5. It is also inconsistent with our own
precedent. In Alaska Wildlife Alliance v. Jensen, 108 F.3d
1065 (9th Cir. 1997), we held that a plaintiff who alleged that
she saw “ ‘sea lions in the bay with huge trolling lures hang-
ing from their mouths’ ” had standing based on aesthetic
injury to contest the Secretary of the Interior’s decision to
allow commercial fishing in a national park. Id. at 1068. A
plaintiff who “expressed concern over [fishing] vessels’ dis-
placement of whales from preferred feeding areas and
described how she now plans her visits to the Park to avoid
the fishermen’s presence” also satisfied the injury-in-fact
requirement. Id.; see also Ocean Advocates v. U.S. Army
Corps of Eng’rs, 402 F.3d 846, 859-60 (9th Cir. 2005) (find-
ing standing based on risk of harm to the environment when
the alleged harm would, among other things, “markedly
decrease[ ]” the plaintiffs’ ability to “observe wildlife”).
[4] For purposes of injury-in-fact, a distinction between
harm to individual animals, on the one hand, and harm to an
animal species through diminution or extinction, on the other,
is illogical. The injury at issue is not the animals’ but the
human observer’s. The government fails to explain — as it
failed to explain in Glickman I — why knowing of a species’
diminution or extinction causes a more acute and objectively
demonstrable injury to a human than observing harm to an
individual animal. See 154 F.3d at 438. Although we appreci-
ate that aesthetic injury standing is not boundless, we con-
clude that harm to a nonhuman primate creates a cognizable
injury-in-fact for someone with Buchanan’s level of engage-
ment with and appreciation for nonhuman primates.
B. Causal Connection
The second prong of the test for Article III standing
requires Buchanan to show a causal connection between her
injury and the USDA’s refusal to finalize the Draft Policy. Put
differently, her injury must be “fairly traceable” to the agen-
18754 ANIMAL LEGAL DEFENSE v. VENEMAN
cy’s failure to act. Pritikin v. Dep’t of Energy, 254 F.3d 791,
797 (9th Cir. 2001). Injury that “results from the independent
action of some third party not before the court” does not sat-
isfy the causation requirement. Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 42 (1976). But a “chain of causation [may
have] more than one link” and still satisfy Article III, so long
as the connection between injury and cause is not “hypotheti-
cal or tenuous.” Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d
835, 849 (9th Cir. 2002).
[5] Terry’s suffering, caused by the conditions at the zoo
where he is confined, gives rise to Buchanan’s injury. Obvi-
ous causal links connect Terry’s suffering (and thus Buchan-
an’s injury) to the USDA’s failure to adopt the Draft Policy.
The Draft Policy addresses several of the problems at Terry’s
zoo that, according to Buchanan, render him listless and
unhappy. For example, Buchanan complains that Terry’s lack
of companionship adversely affects his psychological health.
The Draft Policy declares that, “[i]n order to address the
social needs of nonhuman primates under § 3.81(a), the [zoo’s
environmental enhancement] plan must provide for each pri-
mate of a species known to be social in nature to be housed
with other primates whenever possible.” 64 Fed. Reg. at
38147 (emphasis added). Although the Draft Policy would
have given regulated entities leeway to meet this requirement
in different ways, the mandatory language would have elimi-
nated their discretion to house primates in isolation when pos-
sible to do otherwise. By contrast, without the Draft Policy
clarifying § 3.81’s requirements, the USDA could freely give
Terry’s zoo a clean bill of health when Buchanan complained
in 2001. Terry’s suffering — and thus Buchanan’s injury —
are fairly traceable to the fact that his zoo can operate in ways
that the Draft Policy likely would have restricted or elimi-
nated.
C. Redressability
The final requirement for Article III standing is that the
relief Buchanan seeks in this suit redress her injury. Causal
ANIMAL LEGAL DEFENSE v. VENEMAN 18755
connection and redressability are two sides of the same coin.
The former assesses the relationship between the defendant’s
conduct and the alleged injury, while the latter asks whether
and how the requested relief would help. Allen v. Wright, 468
U.S. 737, 753 n.19 (1984). A plaintiff meets the redressability
test if it is “likely” — not certain — “that the injury will be
redressed by a favorable decision.” Laidlaw, 528 U.S. at 181;
Defenders of Wildlife, 504 U.S. at 561. Although “[a] purely
speculative favorable outcome will not suffice[,]” Rubin v.
City of Santa Monica, 308 F.3d 1008, 1020 (9th Cir. 2002)
(internal quotation omitted), a “[p]laintiff[ ] need not demon-
strate that there is a ‘guarantee’ that [her] injuries will be
redressed by a favorable decision.” Graham v. Fed. Emer-
gency Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir. 1998).
In the Draft Policy’s preface, the USDA declared that, for
effective application and enforcement of § 3.81, additional
information and instruction of the sort contained in the policy
was “necessary.” 64 Fed. Reg. at 38146. If Buchanan’s suit is
successful, and the USDA’s decision to abandon the Draft
Policy is set aside as arbitrary and capricious, the USDA
would either have to explain why the Draft Policy is no longer
“necessary,” or would actually have to adopt it. If the agency
cannot provide a satisfactory explanation and ultimately
adopts the Draft Policy, the policy’s threat of penalty if its
safe harbor is ignored is likely to provide substantial incentive
to comply with its terms.3
In some standing cases, a court has little more than com-
mon sense to guide its determination whether the relief sought
will likely redress an injury. That is not so here. We are in the
fortunate position of having an unambiguous statement by the
regulated entities themselves that the relief Buchanan seeks
will likely alleviate Terry’s suffering. The NABR — which
3
Penalties for violation of § 3.81 and the AWA include revocation of
federal research funds, 8 U.S.C. § 2143(f), fines, id. § 2149(b), and, in
some instances, criminal penalties. Id. § 2149(d).
18756 ANIMAL LEGAL DEFENSE v. VENEMAN
has intervened as the representative of regulated entities —
insists in its brief to us that regulated entities would be effec-
tively compelled to follow the Draft Policy if it were adopted.
The NABR made a similar statement in its motion to inter-
vene in the district court: “Any actual change in the chal-
lenged regulations, resulting from [Plaintiffs’] action, would
directly result in new requirements with which NABR’s
members must comply under the AWA.” (Emphasis added).
These words leave little doubt that, at least in the view of the
regulated entities, the Draft Policy would require them to take
steps that plaintiffs allege would lessen or eliminate their inju-
ries.
[6] The Draft Policy, if adopted, would “alter the legal
regime to which” regulated entities’ action is subject. Bennett
v. Spear, 520 U.S. 154, 169 (1997). Regulated entities would
have a choice — either to follow the Draft Policy’s proposed
environmental enhancement standards and avail themselves of
the safe harbor, or not to follow them and risk penalties for
noncompliance. Fear of adverse consequences that motivates
otherwise voluntary action can satisfy the redressability
prong. See, e.g., McClure v. Ashcroft, 335 F.3d 404, 411 (5th
Cir. 2003); see also Bennett, 520 U.S. at 169 (Article III
“does not exclude injury produced by determinative or coer-
cive effect upon the action of someone else.”). Even if the
relief sought serves an “advisory function,” the plaintiff estab-
lishes redressability if it might have a “powerful coercive
effect” on regulated entities. Id.; see also Tozzi v. U.S. Dep’t
of Health & Human Servs., 271 F.3d 301, 309 (D.C. Cir.
2001) (holding that redressability is satisfied when relief
would be “highly influential” in shaping a regulated entity’s
behavior).
[7] There is another argument for redressability, arising
from Buchanan’s claim that the USDA’s withdrawal of the
Draft Policy was arbitrary and capricious because it “failed[ ]
to articulate a basis for the agency’s decision that the [Draft]
Policy is no longer ‘necessary.’ ” In a similar context — suits
ANIMAL LEGAL DEFENSE v. VENEMAN 18757
involving agencies’ alleged failure to comply with the proce-
dural requirements of the National Environmental Policy Act
— we have held that redressability is satisfied where proce-
dural compliance “could have influenced” an agency’s action.
Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d
961, 976 (9th Cir. 2003). Because requiring the USDA to
offer a rationale for not going forward with the Draft Policy
could influence its decision, Buchanan’s injury is also
redressible on this ground.
[8] We therefore conclude that Buchanan satisfies the
redressability requirement for Article III standing.
D. Other Plaintiffs
Because Buchanan has Article III standing, we do not need
to consider whether the other individual plaintiffs have it as
well. Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 264 & n.9 (1977). Nor do we need to determine whether
the ALDF or the AWI meets the requirements for organiza-
tional standing. Laub v. U.S. Dep’t of the Interior, 342 F.3d
1080, 1086 (9th Cir. 2003).
III. Reviewable Agency Action
As indicated by Dr. Gipson’s oral announcements, and by
the USDA’s defense in this case, it is clear that the agency has
decided to abandon the Draft Policy. Thus, with the case in
its current posture, plaintiffs cannot seek prospective relief
under 5 U.S.C. § 706(1) for the agency’s unreasonable delay
in deciding the Draft Policy’s fate. The question remains
whether the district court should have reviewed the with-
drawal of the Draft Policy as a “final agency action” under the
arbitrary and capricious standard of § 706(2).
A. Final Agency Action
[9] The APA authorizes federal courts to review a “final
agency action,” 5 U.S.C. § 704, to determine if it is “arbitrary,
18758 ANIMAL LEGAL DEFENSE v. VENEMAN
capricious, an abuse of discretion, or otherwise not in accor-
dance with law[.]” 5 U.S.C. § 706(2)(A). The APA “creates
a strong presumption of reviewability that can be rebutted
only by a clear showing that judicial review would be inap-
propriate.” Nat’l Res. Defense Council, Inc. v. Sec. & Exch.
Comm’n, 606 F.2d 1031, 1043 (D.C. Cir. 1979) (“NRDC”).
The district court determined that it lacked authority to
review Dr. Gipson’s statements because they did not amount
to “definitive policy statements.” The issue here, however, is
whether the USDA’s decision to abandon the Draft Policy,
not Dr. Gipson’s statements, is reviewable “final agency
action” within the meaning of § 704.
The term “agency action” “includes the whole or a part of
an agency rule, order, license, sanction, relief, or the equiva-
lent or denial thereof, or failure to act[.]” 5 U.S.C. § 551(13).
“[T]he term . . . undoubtedly has a broad sweep[,]” but it “is
not so all-encompassing as to authorize [courts] to exercise
‘judicial review [over] everything done by an administrative
agency.’ ” Indep. Equip. Dealers Ass’n v. Envtl. Prot. Agency,
372 F.3d 420, 427 (D.C. Cir. 2004) (quoting Hearst Radio,
Inc. v. FCC, 167 F.2d 225, 227 (D.C. Cir. 1948)).
“As a general matter,” two conditions must be satisfied for
an agency action to be deemed “final”:
First, the action must mark the consummation of the
agency’s decisionmaking process . . . — it must not
be of a merely tentative or interlocutory nature. And
second, the action must be one by which rights or
obligations have been determined, or from which
legal consequences will flow.
Bennett, 520 U.S. at 177-78 (1997) (internal quotations omit-
ted). Put differently, an agency action is “final” if it is “defini-
tive” and has a “direct and immediate . . . effect on the day-
to-day business” of the party challenging or subjected to the
ANIMAL LEGAL DEFENSE v. VENEMAN 18759
action. Fed. Trade Comm’n v. Standard Oil Co., 449 U.S.
232, 239 (1980) (internal quotations omitted). If an agency
action is “binding” on the parties it targets, it is likely “final”
for the purposes of judicial review. See 5 Jacob A. Stein et al.,
Administrative Law § 43.01 (2005).
[10] “Finality” should be interpreted in a “ ‘flexible and
pragmatic way.’ ” Her Majesty the Queen ex rel. Ontario v.
Envtl. Prot. Agency, 912 F.2d 1525, 1531 (D.C. Cir. 1990)
(citing Ciba-Geigy Corp. v. Envtl. Prot. Agency, 801 F.2d
430, 435 (D.C. Cir. 1986)). An agency’s refusal to describe
an action as final is not dispositive of reviewability. Id. Nor
does an agency’s failure to offer a formal statement explain-
ing its action deprive that action of finality. See id. To the
contrary, an action may be reviewed, and set aside as arbitrary
and capricious, precisely because the agency has failed “to
give a reasoned account of its decision.” Fox Tel. Stations,
Inc. v. Fed. Communications Comm’n, 280 F.3d 1027, 1045
(D.C. Cir. 2002).
Of course, having acted in regard to the “whole or a part of
an agency rule, order, license, sanction, relief, or the equiva-
lent or denial thereof,” an agency remains free to engage in
further policymaking activity. But the possibility of future
agency action is not sufficient to foreclose review of a defini-
tive action. Otherwise, “review could be deferred indefinite-
ly.” Am. Petroleum Inst. v. Envtl. Prot. Agency, 906 F.2d 729,
739-40 (D.C. Cir. 1990); see also Fox, 280 F.3d at 1037-38
(rejecting Commission’s argument that action “is not final
because the agency intends to continue considering the own-
ership rules”).
The classification of an agency’s statements and declara-
tions into categories of reviewable and non-reviewable pro-
nouncements is an “imprecise” endeavor that requires a “case-
by-case” assessment. Indus. Safety Equip. Ass’n v. Envt’l
Prot. Agency, 837 F.2d 1115, 1117 (D.C. Cir. 1988). But
there is no doubt that the USDA’s abandonment of the Draft
18760 ANIMAL LEGAL DEFENSE v. VENEMAN
Policy is a consummation of its decisionmaking process.
There is nothing interlocutory or tentative about Dr. Gipson’s
statements. The availability of judicial review depends on
whether this agency action determined rights or obligations or
triggered legal consequences.
B. Legislative Rules, Interpretive Rules, and
Policy Statements
In the usual case, a court must determine whether an agen-
cy’s affirmative act constitutes final agency action for pur-
poses of judicial review. Our task is different, for we must
determine whether the USDA’s decision to abandon a course
of action is reviewable. We divide our analysis into two parts:
First, would the Draft Policy, if adopted, have been review-
able? Second, is the USDA’s decision not to adopt that Draft
Policy reviewable?
1. Reviewability of the Draft Policy if Adopted
[11] A reviewable “agency action” includes an “agency
rule.” 5 U.S.C. § 551(13). The APA defines “rule” as “the
whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, inter-
pret, or prescribe law or policy . . . .” 5 U.S.C. § 551(4).
Plainly, the Draft Policy is (1) an “agency statement” (2) of
“general . . . applicability” and “future effect” (3) designed to
“implement” and “interpret” § 3.81 and the AWA. If adopted,
it would have constituted a “rule” within the meaning of
§ 551(4).
[12] The term “rule” may embrace “virtually every state-
ment an agency may make,” Avoyelles Sportsmen’s League,
Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir. 1983), but not all
agency statements are reviewable. Although the distinction
among them is “ ‘enshrouded in considerable smog,’ ” Am.
Bus Ass’n. v. United States, 627 F.2d 525, 529 (D.C. Cir.
1980) (quoting Noel v. Chapman, 508 F.2d 1023, 1030 (2d
ANIMAL LEGAL DEFENSE v. VENEMAN 18761
Cir. 1975)), there are essentially three kinds of agency rules:
legislative rules, interpretive rules, and policy statements. See
Robert A. Anthony, Interpretive Rules, Policy Statements,
Guidances, Manuals and the Like — Should Federal Agen-
cies Use Them to Bind the Public?, 41 Duke L.J. 1311, 1315
(1992); see also Attorney General’s Manual on the Adminis-
trative Procedure Act 30 n.3 (1947) (“Attorney General’s
Manual”). The USDA’s chosen title for the document at issue
here — “Draft Policy” — suggests that it falls into the third
category. However, “the agency’s own label, while relevant,
is not dispositive.” Gen. Motors Corp. v. Ruckelshaus, 742
F.2d 1561, 1565 (D.C. Cir. 1984). More important for classi-
fication purposes are the ends the agency document serves
and the effects it will have on regulated entities.
Legislative rules “create new law, rights or duties,” are pro-
mulgated pursuant to an exercise of delegated power, and
require a notice-and-comment period. Ruckelshaus, 742 F.2d
at 1565; David v. Donovan, 698 F.2d 1057, 1058 (9th Cir.
1983). They indisputably constitute “agency action” and are
subject to judicial review, for they determine rights and obli-
gations and have legal consequences. See Gen. Motors Corp.
v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004).
[13] Interpretive rules, as defined by the 1947 Attorney
General’s Manual, are “rules or statements issued by an
agency to advise the public of the agency’s construction of the
statutes and rules which it administers.” Attorney General’s
Manual at 30 n.3. An interpretive rule is issued “to clarify or
explain existing law or regulations so as to advise the public
of the agency’s construction of the rules it administers.”
Gunderson v. Hood, 268 F.3d 1149, 1154 (9th Cir. 2001)
(emphasis added). It “spells out a duty fairly encompassed
within the regulation that the interpretation purports to con-
strue.” Paralyzed Veterans of Am. v. D.C. Arena L.P., 117
F.3d 579, 588 (D.C. Cir. 1997).
[14] Interpretive rules lack formal status as law. See Syncor
Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997). As
18762 ANIMAL LEGAL DEFENSE v. VENEMAN
a practical matter, however, an interpretive rule may affect the
regulatory practices of an agency or the expectations of a reg-
ulated entity as to what a law or legislative rule means and
how it will be enforced. When an interpretive rule has “a sub-
stantial impact on the rights of individuals[,]” its promulga-
tion may constitute final agency action for the purposes of
judicial review. Am. Postal Workers Union v. U.S. Postal
Serv., 707 F.2d 548, 560 (D.C. Cir. 1983); see also Nat’l
Ass’n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir.
2005) (“Finality resulting from the practical effect of an
ostensibly non-binding agency proclamation is a concept
[courts] have recognized in the past.”). We and our sister cir-
cuits have construed interpretive rules to be judicially review-
able. See, e.g., US West Communications, Inc. v. Hamilton,
224 F.3d 1049, 1055 (9th Cir. 2000) (observing that “[w]hat
scant case law there is suggests that [reviewable] ‘final
orders’ include both interpretive and legislative orders”); Star
Enter. v. Envtl. Prot. Agency, 235 F.3d 139, 146 (3d Cir.
2000) (describing standard of review for interpretive rule). Cf.
Martin v. Occupational Safety & Health Review Comm’n, 499
U.S. 144, 157 (1991) (observing that interpretive rules are
“entitled to some weight on judicial review”).
Finally, “general statements of policy” are “statements
issued by an agency to advise the public prospectively of the
manner in which the agency proposes to exercise a discretion-
ary power.” Attorney General’s Manual 30 at n.3. In other
words, they may tell the public how the agency plans to exer-
cise its enforcement discretion. A policy statement is intended
“to allow agencies to announce their tentative intentions for
the future . . . without binding themselves.” Am. Hosp. Ass’n
v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir. 1987) (internal
quotation omitted) (emphasis added); see also Guardian Fed.
Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d
658, 666 (D.C. Cir. 1978) (“A general statement of policy . . .
does not establish a binding norm. It is not finally determina-
tive of the issues or rights to which it is addressed.”) (internal
quotations omitted). “[T]he agency retains the discretion and
ANIMAL LEGAL DEFENSE v. VENEMAN 18763
the authority to change its position — even abruptly — in any
specific case because a change in its policy does not effect the
legal norm.” Syncor, 127 F.3d at 94.
General statements of policy are tentative in character: the
agency, having announced how it plans to exercise its
enforcement discretion, may nonetheless change course in any
particular case. This tentative character generally renders gen-
eral statements of policy insufficiently final or definitive to
permit judicial review. Hence, a “typical policy statement” is
“not reviewable at all.” Tozzi, 271 F.3d at 312 (Silberman, J.,
concurring); see also Indus. Safety Equip., 837 F.2d at 1119
n.8 (“Discretionary agency positions are generally best not
tested on review until the policy is actually applied . . . .”);
Office of Communication of United Church of Christ v. Fed.
Communications Comm’n, 826 F.2d 101, 105-06 (D.C. Cir.
1987) (nonbinding, prospective quality of policy statement
makes it unripe for judicial review).
The Draft Policy, if finalized, would not have amounted to
a legislative rule. Its purpose — merely to “clarify” existing
obligations prescribed by the AWA and § 3.81 — is the most
obvious evidence to this effect. 64 Fed. Reg. at 38146. The
Draft Policy would have added considerable detail to § 3.81,
but it would not have announced any new requirements for
regulated entities. To the contrary, even if the Draft Policy
were adopted, a regulated entity could still comply with
§ 3.81 without following its specific recommendations for
conditions of captivity.
[15] But neither would the finalized Draft Policy have been
a general policy statement — that is, a tentative declaration of
how the USDA might have enforced § 3.81 and the AWA.
Rather, it is best characterized as a proposed interpretive rule.
The Draft Policy would have summarized “what the [USDA]
believe[d] must be considered and included” in an environ-
mental enhancement plan. 64 Fed. Reg. at 38146 (emphasis
added). It would have provided categorically that entities that
18764 ANIMAL LEGAL DEFENSE v. VENEMAN
follow the specific terms of its safe harbor “will meet the
requirements of § 3.81.” Id. at 38146 (emphasis added). Com-
pare Am. Bus Ass’n, 627 F.2d at 532 (use of “will” indicates
statement is a binding norm), with Guardian Fed., 589 F.2d
at 666 (use of term “may” indicates statement is a “general
statement of policy”). Such safe harbors, which offer regu-
lated entities a guaranteed way to protect themselves from
adverse enforcement, have legal consequence. See Gen. Elec.
Co. v. Envtl. Prot. Agency, 290 F.3d 377, 383 (D.C. Cir.
2002) (“ ‘In some circumstances, if the language of the docu-
ment is such that private parties can rely on it as a norm or
safe harbor by which to shape their actions, it can be binding
as a practical matter.’ ”) (quoting Anthony, Interpretive Rules,
41 Duke L.J. at 1329) (emphasis added); Atlantic Richfield
Co. v. Fed. Energy Admin., 556 F.2d 542, 552 (T.E.C.A.
1977) (observing that an agency document that lacks formally
binding effect “may have extremely important consequences
with respect to the issue of good faith reliance for future acts”
and therefore constitute “final agency action”).
[16] In short, the USDA would have bound itself to a par-
ticular interpretation of § 3.81 for enforcement purposes had
it adopted the Draft Policy. Such restrictions on an agency’s
regulatory discretion are features of interpretive rules, not
general policy statements. See Syncor, 127 F.3d at 94 (“The
primary distinction between . . . any rule . . . and a general
statement of policy, then, turns on whether an agency intends
to bind itself to a particular legal position.”).
[17] We conclude that the Draft Policy, if adopted, would
have been judicially reviewable as an interpretive rule from
which legal consequence flowed. Our conclusion is buttressed
by the Draft Policy’s publication in the Federal Register, and
the fact that the USDA opened a public comment period for
it. Both of these procedural attributes would have strength-
ened the Draft Policy’s claim to binding authority had it been
adopted. See Molycorp, Inc. v. Envtl. Prot. Agency, 197 F.3d
543, 545 (D.C. Cir. 1999); Rank v. Nimmo, 677 F.2d 692, 698
ANIMAL LEGAL DEFENSE v. VENEMAN 18765
(9th Cir. 1982). Moreover, a record assembled through a
notice-and-comment period enables judicial review by provid-
ing courts with materials necessary to evaluate the rule’s suf-
ficiency. See Int’l Union, UMW v. Mine Safety & Health
Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005).
2. Reviewability of the Withdrawal of the Draft Policy
We now turn to the second part of our inquiry — whether
the USDA’s abandonment of the Draft Policy is judicially
reviewable. This part of the inquiry raises two interrelated
questions. First, did the abandonment of a Draft Policy have
legal consequences or determine rights or obligations? Sec-
ond, does it make a difference that the USDA had no legal
obligation to propose or adopt the Draft Policy in the first
place?
a. Legal Consequences or Determination of Rights or
Obligations
[18] The abandonment of a proposed rule such as the Draft
Policy leaves the status quo in place. But maintaining the sta-
tus quo has legal consequences. Our decision in Defenders of
Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001), illustrates
this point. The Endangered Species Act (“ESA”) requires that
the Secretary of the Interior designate as “endangered” or
“threatened” any species at risk of extinction. 16 U.S.C.
§ 1532(6). The Secretary withdrew a proposed rule that would
have designated the flat-tailed horned lizard an endangered
species, thereby leaving the status quo undisturbed. 258 F.3d
at 1138-39. The consequences of leaving the status quo undis-
turbed were obvious. Because it denied the flat-tailed horned
lizard the protections afforded to endangered species by the
ESA, the Secretary’s decision, if incorrect, exposed the lizard
to risk of extinction. We therefore reviewed the Secretary’s
decision.
It is clear that the Draft Policy would have determined
rights and obligations of the regulated entities. A regulated
18766 ANIMAL LEGAL DEFENSE v. VENEMAN
entity in doubt about its obligations under § 3.81 and the
AWA would have known, after the adoption of the Draft Pol-
icy, precisely what it could have done to ensure that it ful-
filled its obligations. Compliance with the safe harbor
requirements would have protected against adverse enforce-
ment actions by the USDA. Indeed, as we have been told by
the intervenor NABR, the Draft Policy would have had the
practical consequence of strongly encouraging, perhaps even
requiring, regulated entities to comply with its terms. Thus, it
clearly would have had a legal consequence if adopted.
[19] The converse is also true. Without the Draft Policy,
there is no safe harbor. As the Final Report indicated, the
practical effect is that regulated entities have little incentive
to change their behavior. Because the abandonment of the
Draft Policy means that regulated entities will not change
their behavior, the status quo remains undisturbed. The conse-
quence is that harm to chimpanzees like Terry continues, and
aesthetic injury to individuals like Buchanan also continues.
Of course, the USDA may promulgate other Draft Policies
in the future, as Dr. Gipson has suggested in his declaration
it intends to do. For now, however, the agency’s last word is
that the Draft Policy is not necessary, with the effect that the
Draft Policy has been abandoned, and that the status quo
remains unchanged. See Fox, 280 F.3d at 1038.
b. USDA Had No Obligation to Act in the First Place
The conclusion that the failure to adopt the Draft Policy
had legal consequence is not necessarily the end of the
inquiry. The USDA relies on the D.C. Circuit’s decision in
Glickman II, which held that § 3.81 adequately discharged the
USDA’s rulemaking obligation under the AWA. Because it
had no statutory duty to propose the Draft Policy in the first
place, the USDA argues, its decision to abandon the policy is
unreviewable. We disagree.
ANIMAL LEGAL DEFENSE v. VENEMAN 18767
We do not question the conclusion of the D.C. Circuit in
Glickman I. Because § 3.81 passed muster standing on its
own, the USDA’s decision to propose the Draft Policy was
not compelled by the AWA. “An agency’s discretionary deci-
sion not to regulate a given activity is inevitably based, in
large measure, on factors not inherently susceptible to judicial
resolution, e.g., internal management considerations as to
budget and personnel; evaluations of its own competence;
weighing of competing policies within a broad statutory
framework.” NRDC, 606 F.2d at 1046. Moreover, “even if an
agency considers a particular problem worthy of regulation, it
may determine for reasons lying within its special expertise
that the time for action has not yet arrived.” Id. Judicial
second-guessing of such decisions triggers concerns of over-
reaching, particularly when the agency has already deemed
the regulation unworthy of adoption. Id. at 1045.
[20] Nonetheless, courts have reviewed, albeit highly defer-
entially, the withdrawal of proposed rules like the Draft Pol-
icy. An example is Center for Auto Safety v. National
Highway Traffic Safety Administration, 710 F.2d 842 (D.C.
Cir. 1983). A statute provided that the National Highway and
Traffic Safety Administration (“NHTSA”) “ ‘may by rule . . .
amend the average fuel economy standard . . . to a level which
[it] determines is the maximum feasible average fuel economy
level . . . .’ ” Id. at 844 (quoting 15 U.S.C. § 2002(a)(4))
(emphasis added). The agency refused to finalize a proposed
regulation that would have tightened fuel economy standards
for certain cars. Noting the reasons the NHTSA gave for with-
drawing its proposed regulation, the court concluded that
[t]hese statements accompanying the withdrawal of
the [proposed rule] clearly interpret the relevant stat-
ute and indicate NHTSA’s policy regarding the exer-
cise of discretion granted to it by that legislative
enactment. Given our prior decisions construing the
Administrative Procedure Act’s broad definition of
“rule,” we are compelled to conclude that NHTSA
18768 ANIMAL LEGAL DEFENSE v. VENEMAN
has prescribed a rule sufficient to grant this court
jurisdiction . . . .
Id. at 846. In other words, the retreat to the status quo as the
agency’s policy was reviewable, even though the statute at
issue, by using the term “may,” allowed the agency the choice
whether to engage in rulemaking in the first place.
The D.C. Circuit’s decision in Professional Drivers Coun-
cil v. Bureau of Motor Carrier Safety, 706 F.2d 1216 (D.C.
Cir. 1983), is also instructive. There, the agency withdrew a
proposed amendment to an existing rule that specified hours-
of-service requirements for commercial truck drivers. The
decision to withdraw the proposed rule did not take place
against a legal obligation to act:
This is not a situation where the agency has shirked
its statutory duty by refusing to regulate. The agency
has regulated the field. In this instance, the agency’s
statutory authority to regulate is permissive. The
statute provides that the agency “may establish rea-
sonable requirements.” The permissive nature of the
statute implies broad agency discretion in selecting
the appropriate manner of regulation.
Id. at 1221. The D.C. Circuit recognized the limited scope of
judicial inquiry into this sort of agency decisionmaking:
The circumscribed scope of this review is dictated by
both the nature of the administrative proceeding
(informal rulemaking) and by the nature of the ulti-
mate decision (not to promulgate rules). The record
in an informal rulemaking proceeding is a less than
fertile ground for judicial review . . . . Furthermore,
rulemaking is an inherently policy-oriented process
and the agency must be accorded considerable defer-
ence in evaluating information presented and reach-
ing decisions based upon its expertise. Our review is
ANIMAL LEGAL DEFENSE v. VENEMAN 18769
also circumscribed by the fact that the agency
decided not to promulgate new rules in an area
already heavily regulated.
Id. at 1220-21 (internal quotation omitted) (emphasis added).
Nonetheless, the court in the end reaffirmed its authority to
exercise judicial review. It gave effect to the agency’s interest
in having relatively unfettered power to decide whether to
adopt rules not by abandoning its reviewing authority alto-
gether but by exercising a highly deferential standard of
review. See id.
Finally, International Union, United Mine Workers of
America v. United States Department of Labor demonstrates
that once an agency has embarked on a course of action, even
a discretionary course of action, a court may review the agen-
cy’s failure to explain its subsequent abandonment of that
course of action. There, the D.C. Circuit reviewed the with-
drawal of a proposed Air Quality rule by the Mine Safety and
Health Administration (“MSHA”) after a public hearing and
comment period. 358 F.3d at 41-42. The D.C. Circuit
explained that while the MSHA was under no obligation to
adopt the proposed rule, “or, for that matter, any rule,” it was
not “free to terminate the rulemaking for no reason whatsoev-
er.” Id. at 43-44 (quotation marks omitted). The D.C. Circuit
reviewed the withdrawal of the proposed rule under the
APA’s “deferential ‘arbitrary and capricious’ standard,” stat-
ing that it would “give more deference to an agency’s deci-
sion to withdraw a proposed rule than we give to its decision
to promulgate a new rule or to rescind an existing one.” Id.
at 43. Despite this heightened deference, the D.C. Circuit held
that the withdrawal was arbitrary and capricious because the
MSHA’s explanations — that “there was a ‘change in agency
priorities,’ ” the record was stale, and a recent Eleventh Cir-
cuit opinion cast doubt on the proposed rule — were inade-
quate. Id. at 44-45.
[21] The D.C. Circuit has offered two helpful criteria to
determine when the withdrawal of a voluntarily proposed rule
18770 ANIMAL LEGAL DEFENSE v. VENEMAN
may be amenable to at least a “minimal level of judicial scru-
tiny.” NRDC, 606 F.2d at 1047. The agency must have “held
a rulemaking proceeding,” and it must have “compiled a
record narrowly focused on the particular rules suggested but
not adopted.” Id. In NRDC, the D.C. Circuit explained that the
concern that a court may improperly oblige an agency to
spend resources defending a withdrawn rule is diminished
when the agency has undertaken extensive rulemaking pro-
ceedings before it abandons a proposed rule. Id. at 1045-46.
Such activity “evidences [the agency’s] view that the propos-
als are sufficiently meritorious to warrant further investigation
. . . .” Id. at 1046. Having solicited public participation, the
prospect of judicial review would also force the agency to
give due regard to citizen input. Id. Moreover, concerns over
a court’s lack of institutional competence are lessened to the
degree that the pre-withdrawal rulemaking proceeding has
been extensive and has thereby provided more data to the
reviewing court. Id. at 1047.
In essence, the criteria help to distinguish between two
classes of cases, one ordinarily reviewable and the other not
reviewable. In the first class, an agency undertakes an action
— for example, promulgation of a Draft Policy — but subse-
quently changes course and abandons that action. Properly
applied, the criteria ensure that a sufficient record exists for
a court to identify a discrete change of course, and to review
the change of course to determine whether it was arbitrary and
capricious. Id. at 1046-47; see also Fox, 280 F.3d at 1037
(“There is no question [an agency] determination not to repeal
or to modify a rule, after giving notice of and receiving com-
ment upon a proposal to do so, is a final agency action subject
to judicial review.”).
In the second class of cases, an agency simply declines to
take any action at all. Absent a particular statutory mandate
that the agency act, these cases are considered presumptively
unreviewable in part because courts lack a “focus for judicial
review . . . to determine whether the agency exceeded its stat-
ANIMAL LEGAL DEFENSE v. VENEMAN 18771
utory powers.” Heckler v. Chaney, 470 U.S. 821, 832 (1985);
see also id. at 834, 838. Courts have no means to choose
between the “infinite number of rules that an agency could
adopt in its discretion,” NRDC, 606 F.2d at 1046, other than
undertaking the “complicated balancing of a number of fac-
tors” ordinarily considered to be “peculiarly within [the agen-
cy’s] expertise.” Chaney, 470 U.S. at 831. The D.C. Circuit’s
analysis in NRDC is fully consistent with the Supreme
Court’s later decision in Chaney, for NRDC concerned an
abandonment of a course of action whereas Chaney concerned
a mere failure to act.
[22] We endorse and apply the D.C. Circuit’s criteria in
NRDC. Both are satisfied here, and thus this case falls within
the class of reviewable cases. The USDA gave notice by pub-
lishing the Draft Policy in the Federal Register on July 15,
1999, and it solicited comments from the public. Plaintiffs
allege that, by the time the comment period ended on October
13, 1999, see 66 Fed. Reg. 61327, 61364 (Dec. 3, 2001), the
agency had received more than 200 sets of comments. More-
over, the comments solicited were to address the “content of
the draft policy,” and thus focused narrowly on the proposed
rule. 64 Fed. Reg. at 38147.
C. Summary
[23] The USDA’s decision to abandon the Draft Policy is
definitive and final. By leaving the status quo in place, the
USDA gives regulated entities no incentive to adopt environ-
mental enhancement plans that comply with a set of standards
the agency at one time deemed “necessary” for the effective
implementation of § 3.81. The USDA held rulemaking pro-
ceedings before it abandoned the Draft Policy and therefore
assembled a record amenable to judicial review. We therefore
conclude that the abandonment of the Draft Policy constitutes
a final agency action for the purposes of § 706(2).
18772 ANIMAL LEGAL DEFENSE v. VENEMAN
Conclusion
We conclude that plaintiff Buchanan has standing under
Article III based on the aesthetic injury she has described. We
further conclude that the USDA’s withdrawal of the Draft
Policy constitutes final agency action that is reviewable pur-
suant to § 706(2) of the APA. We therefore reverse the district
court’s dismissal of this case. On remand, the district court
shall determine whether the USDA’s withdrawal of the Draft
Policy was arbitrary and capricious in violation of § 706(2) of
the APA.
REVERSED and REMANDED.
KOZINSKI, Circuit Judge, dissenting:
In holding that we can review withdrawal of proposed reg-
ulations an agency had no duty to adopt, my colleagues over-
look the sea-change in administrative law wrought by Heckler
v. Chaney, 470 U.S. 821, 831-32 (1985), which held that we
have no authority to review an agency’s discretionary deci-
sion not to act. See The Supreme Court—Leading Cases:
Judicial Review of Agency Inaction, 99 Harv. L. Rev. 264,
269 (1985) (hereafter “Judicial Review of Agency Inaction”)
(“Chaney represents a significant departure from the trend of
recent administrative law.”). Failure to appreciate the funda-
mental distinction between agency action and inaction perme-
ates every aspect of the majority’s analysis, starting with the
threshold question of standing.
Standing
1. The majority wastes much toner trying to show that
USDA’s Draft Policy at issue here would, if adopted, amelio-
rate the conditions plaintiffs complain about. Maj. op. at
18754-57. Even if this were true, which it is not, see pp.
ANIMAL LEGAL DEFENSE v. VENEMAN 18773
18774-77 infra, it doesn’t matter. In determining whether
plaintiffs have standing, the question is not whether the agen-
cy’s proposed action would have benefitted them, but whether
this lawsuit will do so. The Draft Policy only matters if the
court can order, or at least move the agency towards, its adop-
tion.
Certainly we cannot order USDA to adopt the Draft Policy.1
No court I am aware of has ever ordered an agency to adopt
a particular regulation, and for good reason.2 Adoption of reg-
ulations is an executive function that no court has authority to
perform. Even where the agency is required by law to act, and
a court finds that it failed to do so, the court cannot tell the
agency what regulation to adopt; rather, it must remand for
further action. See, e.g., Envtl. Def. Ctr., Inc. v. EPA, 344
F.3d 832, 863 (9th Cir. 2003); Defenders of Wildlife v. Nor-
ton, 258 F.3d 1136, 1146-47 (9th Cir. 2001). In such cases it
can at least be said that the court nudged the agency towards
a result favorable to the plaintiffs by correcting the agency’s
misinterpretation of the statute and thus narrowing its discre-
tion. But the agency here has no duty to act; it fully dis-
charged its statutory responsibility by adopting the regulations
approved by the DC Circuit. See Animal Legal Def. Fund, Inc.
v. Glickman, 204 F.3d 229, 235 (D.C. Cir. 2000) (“Glickman
1
An agency’s decision to adopt regulations is thus fundamentally differ-
ent from a failure to adopt. When an agency adopts regulations that turn
out to be contrary to law, a court can order the agency to set them aside.
See, e.g., Ecology Ctr., Inc. v. Austin, 430 F.3d 1057, 1071 (9th Cir.
2005). This is concrete relief that will benefit the plaintiff directly (pre-
suming he can show that he would be injured by adoption of the regula-
tions). A court can grant no commensurate relief when a party complains
of an agency’s failure to adopt a discretionary regulation.
2
Whether one views the proposed policy as an interpretive regulation or
a safe harbor, there is no doubt that, once adopted, the policy would tie
the agency’s hands. Those who comply with the policy will be entitled to
count on it if the agency attempts to bring an enforcement action in the
future. See, e.g., Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C.
Cir. 1987) (per curiam). Adoption of the regulation thus has consequences
far beyond the immediate parties to the dispute.
18774 ANIMAL LEGAL DEFENSE v. VENEMAN
II”). The most we can do is tell the agency that its reason for
rejecting the Draft Policy is insufficient. See maj. op. at
18772. This won’t ensure that the agency will adopt the Draft
Policy or narrow its discretion in any meaningful way. The
agency is free to open up the proceedings for further com-
ment, adopt a different policy, or again reject the policy, this
time giving better reasons.3
I suppose that plaintiffs could then bring another lawsuit
and we could, once again, disapprove the agency’s reasons.
But no matter how often the kabuki is repeated, it can never
give plaintiffs what they want—an order that materially limits
the agency’s discretion to reject the Draft Policy. This is
because the agency has no legal duty to act, and there is thus
no law we can bring to bear in narrowing its discretion. The
agency can refuse to adopt the Draft Policy again and again,
citing reasons of policy and convenience that we may not
second-guess. See pp. 18778-83 infra. Plaintiffs are pushing
a long and very limp string, and no matter how hard they try,
they can never get the object at the far end to move.
2. Let’s assume, nevertheless, that plaintiffs could obtain
an order forcing the agency to adopt the Draft Policy. Would
the policy, if adopted, redress their injuries, as that term is
understood in our standing jurisprudence? See Allen v.
Wright, 468 U.S. 737, 751 (1984). Plaintiffs have the burden
to show they have standing and cannot rely on “[s]peculative
inferences . . . to connect their injury to the challenged
actions.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,
45 (1976).
A favorable result that hinges on a third party’s response is
3
The case is therefore also quite different from an agency adjudication
where a court can, for example, order an agency to treat an immigrant as
eligible for asylum. See, e.g., He v. Ashcroft, 328 F.3d 593, 604 (9th Cir.
2003). In an adjudication, the agency has a legal duty to act where the
record compels a particular action vis-a-vis a particular party.
ANIMAL LEGAL DEFENSE v. VENEMAN 18775
generally too speculative to support standing. In Linda R.S. v.
Richard D., 410 U.S. 614, 618 (1973), for instance, the
Supreme Court held that a mother didn’t have standing to
enforce a statute that imprisoned dead-beat dads; while such
prosecution might have resulted in future child-support pay-
ments, the result was “speculative.” Likewise, Allen v. Wright
held that plaintiffs had no standing to challenge the tax
exempt status of segregated private schools because there was
no assurance the schools would desegregate out of fear of los-
ing their exemptions. 468 U.S. at 758-59. In applying these
precedents we have held that an injury is not redressed if any
benefit to plaintiffs is “conditioned on the discretionary
behavior of any third party.” Fernandez v. Brock, 840 F.2d
622, 627 (9th Cir. 1988).
Of course, if the third party has no choice, its response is
not discretionary and may provide a basis for standing. But
this is only so if the regulation in question is sufficiently coer-
cive. Maj. op. at 18756. The Draft Policy here is not coercive;
it is, as the majority recognizes, a “safe harbor.” See id. at
18747, 18748, 18755, 18756, 18764, 18766. Entities that
house primates need not follow the Draft Policy; they may
lawfully choose alternate means of statutory compliance. If
fear of incarceration in Linda R.S. and loss of tax benefits in
Allen v. Wright were insufficiently coercive to give plaintiffs
there standing, I don’t see how a wholly permissive regime—
one that expressly allows for alternate means of compliance—
can give these plaintiffs standing.
The majority mistakenly relies on the representation of the
intervenor, the National Association for Biomedical Research
(NABR). NABR takes this view, however, based on its inter-
pretation of the Draft Policy as mandatory—a position the
majority correctly rejects. Maj. op. at 18763. Once we have
determined that the Draft Policy is merely a safe harbor,
NABR’s members will be free, just like everyone else, to
abide by the policy or not, as they see fit. Certainly, nothing
NABR has said in this litigation can bind its members to fol-
18776 ANIMAL LEGAL DEFENSE v. VENEMAN
low the policy, should it be implemented. Because there is no
way of knowing whether any particular facility will comply,
plaintiffs cannot show that they will benefit from the policy
because the facilities they are concerned with may not.
What intervenor says doesn’t matter anyhow, because it
cannot speak—nor does it purport to speak—for all facilities
that house primates. “NABR is an association of more than
300 universities, colleges, medical schools, veterinary
schools, research institutes, research companies, and pharma-
ceutical manufacturers, as well as individual biomedical
researchers, engaged in the care and use of animals in
biomedical research.” Yet the single example on which the
majority bases standing involves Terry, a chimpanzee housed
in a zoo. Zoos differ from the research-industry entities that
make up NABR’s membership. They’re typically cash-
strapped non-profit organizations with significant public sup-
port in the local community. They need not fear that sensitive
and expensive research projects will be disrupted if they fall
out of compliance. Their risk calculus might be quite different
from that of organizations represented by NABR. The South-
ern Nevada Zoological-Botanical Park where Terry is housed,
a facility already certified by USDA as compliant, may well
choose not to comply with the Draft Policy.
But let’s assume, for the sake of argument, that Terry’s zoo
did feel it had to follow the Draft Policy. I don’t see how we
can be sure that such compliance would ameliorate Buchan-
an’s injury. The gravamen of her complaint is that Terry is
lonely because he is housed by himself. The majority con-
cludes that compliance with the Draft Policy would alleviate
Terry’s suffering, pointing to the following language: “[i]n
order to address the social needs of nonhuman primates under
§ 3.81(a), the [zoo’s environmental enhancement] plan must
provide for each primate of a species known to be social in
nature to be housed with other primates whenever possible.”
Maj. op. at 18754 (quoting Draft Policy on Environmental
Enhancement for Nonhuman Primates, 64 Fed. Reg. 38,145,
ANIMAL LEGAL DEFENSE v. VENEMAN 18777
38,147 (proposed July 15, 1999)) (alterations in original). The
majority zooms in on “must” but gives no effect to “whenever
possible.” It also overlooks the language that exempts facili-
ties from this requirement if there is “[d]ocumented unavaila-
bility of compatible individuals.” 64 Fed. Reg. at 38,147. In
other words, the zoo must only house Terry with another
chimpanzee if it has another chimpanzee to house him with.
Buchanan could easily have alleged that Terry’s zoo had a
compatible primate, but she didn’t. For all we know—for all
the record reflects—Terry is the only chimp at the Southern
Nevada Zoological-Botanical Park, or the zoo may have other
chimps that can’t be moved without disruption to themselves
or their current companions. Even if the zoo believed it
needed to comply with the Draft Policy, it could do so by doc-
umenting the unavailability of another compatible animal. To
conclude that Buchanan has established standing is to make
speculation the hallmark of redressability.4
4
The majority also claims plaintiffs’ injuries would be redressed
because forcing the agency to provide “a rationale for not going forward
with the Draft Policy could influence [USDA’s] decision.” Maj. op. at
18757. The majority lifts this “procedural redressability” theory from our
NEPA case law, but NEPA is a statute that spells out procedural require-
ments designed to influence the agency’s decision-making process. The
injury thus arises when the agency makes a decision without complying
with those procedures. For example, in Citizens for Better Forestry v. U.S.
Department of Agriculture, 341 F.3d 961 (9th Cir. 2003), on which the
majority relies, plaintiffs claimed that the agency had published a national
forest management policy that “was not accompanied by any environmen-
tal or endangered-species analysis,” and “did not entertain comments
regarding the rule’s environmental impact.” Id. at 967. Because the agency
bypassed statutory procedures designed to influence its deliberations, we
held that plaintiffs need not show that the agency would make a different
decision, had the procedures been followed; it was sufficient that the pro-
cedures could influence the decision-making process. Plaintiffs here can
point to no statutory requirement that the agency bypassed by withdrawing
the Draft Policy without comment. The procedural redressability theory
has no application where there is no procedural requirement the agency
failed to comply with.
18778 ANIMAL LEGAL DEFENSE v. VENEMAN
Reviewability
1. The majority concludes that the agency’s failure to
adopt the Draft Policy is reviewable because the Draft Policy
itself, if adopted, would have been reviewable. Maj. op. at
18765-66. This doesn’t follow; adoption and nonadoption of
regulations are asymmetrical events. Regulations change the
law, and thus can sharply affect the legal interests of private
parties. Failure to adopt regulations leaves rights and respon-
sibilities unchanged; it leaves the status quo in place. See
Kennecott Utah Copper v. U.S Dep’t of the Interior, 88 F.3d
1191, 1207 (D.C. Cir. 1996) (“Because [the agency’s] deci-
sion to withdraw the [proposed regulation] did not alter sub-
stantive legal obligations under previously published
regulations, the agency’s decision to withdraw the document
did not constitute a ‘regulation’ within the meaning of § 113
of CERCLA.”). Because parties are not entitled to an agen-
cy’s discretionary regulation, they can’t claim to be aggrieved
when the agency fails to adopt it.
When an agency adopts regulations, a court can judge
whether those regulations are consistent with the agency’s
grant of authority (under the broad limits of Chevron USA
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 844-45 (1984)), and whether they constitute an abuse of
discretion. There is, in the words of the Supreme Court, “law
to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 410 (1971). But an agency may choose not to
adopt discretionary regulations for a variety of reasons, many
of which a court can’t review: a change in policy; a lack of
enforcement resources; a lack of scientific expertise to
address the problem at this time; a change in direction based
on a determination that the problem is better addressed some
other way. All of these matters are, in the words of the
Administrative Procedure Act, “committed to agency discre-
tion by law.” 5 U.S.C. § 701(a)(2). There is nothing for a
court to review.
ANIMAL LEGAL DEFENSE v. VENEMAN 18779
There was a time when the Supreme Court (like the major-
ity here) disdained the distinction between agency action and
inaction. See, e.g., Rochester Tel. Corp. v. United States, 307
U.S. 125, 143 (1939). But the Court turned its back on this
caselaw in Heckler v. Chaney, 470 U.S. 821 (1985), which
held that an agency’s decision not to act is, under ordinary cir-
cumstances, unreviewable.
Chaney involved death row inmates who claimed that the
FDA had shirked its duty by failing to prevent states from
using drugs for lethal injections. According to the inmates,
these drugs had not been proven “safe and effective” for use
in human executions, as required by the applicable statute. Id.
at 824. In rejecting this contention, the Court closely exam-
ined the text of the APA, and concluded that an agency’s fail-
ure to act is insulated from judicial review in two
circumstances. First, under 5 U.S.C. § 701(a)(1), an agency
decision may not be judicially reviewed “when Congress has
expressed an intent to preclude judicial review.” 470 U.S. at
830. Neither here nor in Chaney is this provision applicable.
But the Court went on to hold that judicial review is also pre-
cluded under 5 U.S.C. § 701(a)(2) where “no judicially man-
ageable standards are available for judging how and when an
agency should exercise its discretion.” 470 U.S. at 830. The
Court held that an agency’s discretionary decision not to
enforce a statute—even though it has the authority to do so—
is unreviewable.
In reaching this conclusion, the Court noted that the agen-
cy’s decision not to exercise its enforcement powers is “gen-
erally committed to [its] absolute discretion.” Id. at 831. This,
the Court said, “is attributable in no small part to the general
unsuitability for judicial review of agency decisions to refuse
enforcement.” Id. “The reasons for this general unsuitability,”
the Court continued, “are many.” Id. Among them, the Court
listed the following:
[T]he agency must not only assess whether a viola-
tion has occurred, but whether agency resources are
18780 ANIMAL LEGAL DEFENSE v. VENEMAN
best spent on this violation or another, whether the
agency is likely to succeed if it acts, whether the par-
ticular enforcement action requested best fits the
agency’s overall policies, and, indeed, whether the
agency has enough resources to undertake the action
at all. . . .
In addition to these administrative concerns, we
note that when an agency refuses to act it generally
does not exercise its coercive power over an individ-
ual’s liberty or property rights, and thus does not
infringe upon areas that courts often are called upon
to protect. Similarly, when an agency does act to
enforce, that action itself provides a focus for judi-
cial review, inasmuch as the agency must have exer-
cised its power in some manner. The action at least
can be reviewed to determine whether the agency
exceeded its statutory power.
Id. at 831-32.
While Chaney spoke directly to an agency’s enforcement
actions, its teachings sweep more broadly. Regulations impli-
cate precisely the same concerns addressed in Chaney; one
can properly view the adoption—or non-adoption—of regula-
tions as an enforcement decision.5 In adopting regulations, the
agency implements the mandate of its governing statute by
coercing the conduct of private parties. Regulations channel
the agency’s enforcement efforts and commit agency
resources to a particular interpretation of the statute. A deci-
sion to promulgate regulations, just like a decision to enforce,
amounts to an exercise of agency authority, which “at least
can be reviewed to determine whether the agency exceeded its
statutory powers.” Id. at 832. Failure to adopt discretionary
5
Indeed, part of the relief sought by the inmates in Chaney was that the
agency “adopt procedures for seizing the drugs from state prisons.” 470
U.S. at 824.
ANIMAL LEGAL DEFENSE v. VENEMAN 18781
regulations, by contrast, may reflect considerations besides
the applicable statute, such as a change in policy, a lack of
resources, a decision to pursue a different course of action or
a decision to gather additional information before acting.
Such failure to adopt cannot normally be tested against the
applicable statute, because it may be based on non-statutory
considerations of policy and convenience that are within the
agency’s inherent authority.
The failure to adopt regulations, like failure to enforce, may
be reviewed in certain narrow circumstances. The first, and
most common, is where the agency has a legal duty to act. Id.
at 832-35. The typical such case is where Congress has
directed the agency to take a particular regulatory action—
such as listing species as endangered. See Defenders of Wild-
life v. Norton, 258 F.3d 1136, 1137-38 (9th Cir. 2001); see
also Greater L.A. Council on Deafness, Inc. v. Baldridge, 827
F.2d 1353, 1361 (9th Cir. 1987). The second is where the
agency refuses to act based solely on a belief that it lacks
jurisdiction. Chaney, 470 U.S. at 833 n.4; see, e.g., Transpa-
cific Westbound Rate Agreement v. Fed. Mar. Comm’n, 938
F.2d 1025, 1026-27 (9th Cir. 1991) (“The Commission’s
order declined jurisdiction over parts of shipping agreements
that regulate wholly foreign transportation. . . . Instead, the
Commission held that it had jurisdiction only over the United
States-foreign portion of the agreements.”). The third is where
the agency’s refusal to act violates constitutional rights.
Chaney, 470 U.S. at 838. Finally, a court might have jurisdic-
tion where “the agency has ‘consciously and expressly
adopted a general policy’ that is so extreme as to amount to
an abdication of its statutory responsibilities.” Id. at 833 n.4
(quoting Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.
1973) (en banc)).
None of these exceptions apply. There is certainly no claim
that the agency believed it lacked jurisdiction to adopt the
Draft Policy. Nor is there any suggestion that the agency abdi-
cated its statutory responsibilities or violated constitutional
18782 ANIMAL LEGAL DEFENSE v. VENEMAN
rights. And, most significantly, we know for a fact that the
agency had no statutory duty to act because the DC Circuit
found the regulations the agency had adopted sufficient.
Glickman II, 204 F.3d at 235. The agency need do no more.
Adoption of the Draft Policy was an entirely discretionary
decision, one the agency could choose to eschew based on a
variety of non-legal considerations.
The majority remands for a determination “whether the
USDA’s withdrawal of the Draft Policy was arbitrary and
capricious in violation of § 706(2) of the APA,” maj. op. at
18772, but does not say how that determination can be made.
The implication seems to be that review should be on the
record of the rulemaking proceedings. Id. at 40. But it’s not
clear why this should be so. Absent a statutory duty to act, an
agency need not adopt regulations, even if all public com-
ments submitted favor them (which is certainly not the case
here). The agency may decide not to adopt regulations
because of a change in administrations, or some other change
in policy.6 Or, the agency may decide to withdraw a proposed
regulation in response to a change in law.7 The agency might
6
Withholding proposed regulations that are final but for publication in
the Federal Register seems to be common when there is a change in
administrations. See Dabney v. Reagan, 542 F. Supp. 756, 760 (S.D.N.Y.
1982) (“Shortly after taking office, President Reagan directed the heads of
all Executive Departments to postpone all pending regulations.”); Kenne-
cott Utah Copper Corp., 88 F.3d at 1200-01 (Clinton administration with-
drawal of G.H.W. Bush administration regulation); Chen v. INS, 95 F.3d
801, 803-04 (9th Cir. 1996) (same); Kootenai Tribe of Idaho v. Veneman,
142 F. Supp. 2d 1231, 1236 n.6 (D. Idaho 2001) (G.W. Bush administra-
tion postponed publication of all pending rules and regulations upon first
entering office). The majority’s opinion casts serious doubt on this venera-
ble practice.
7
This appears to be what happened here. The agency proposed the Draft
Policy in response to the district court’s ruling in Animal Legal Defense
Fund, Inc. v. Glickman, 943 F. Supp. 44 (D.D.C. 1996), that the regula-
tions it had adopted were insufficiently specific. After that ruling was
reversed, see Glickman II, 204 F.3d at 235, the agency no doubt deemed
the Draft Policy unnecessary.
ANIMAL LEGAL DEFENSE v. VENEMAN 18783
also choose a different path.8 An agency’s decision not to pro-
ceed with a regulation—just like a decision not to enforce—
can properly be based on a variety of judicially unreviewable
considerations.
The majority’s implication that withdrawal of the policy
must be justified by the public comments is alarming. It locks
an agency into a course of action—a course it cannot aban-
don, unless it be for reasons a court finds sufficient on the
administrative record. This not only improperly constrains
agency discretion under Chaney, it discourages agencies from
proposing discretionary regulations, lest they be stuck with
them if they cannot convince a federal court that the record
supports abandonment. If this was ever the law, it’s certainly
not the law today.
The majority relies on several cases from the DC Circuit,
see maj. op. at 18766-71, but those cases have been overtaken
by Chaney.9 Indeed, the case on which my colleagues princi-
pally rely, Natural Resources Defense Council, Inc. v. SEC,
606 F.2d 1031 (D.C. Cir. 1979) (“NRDC”), is listed in Justice
8
This too seems to have played a role here. Dr. Gipson, in his statement,
noted as follows: “USDA and NIH had agreed to develop best manage-
ment practice guidelines concerning nonhuman primates.”
9
The majority also relies on a post-Chaney case from the DC Circuit,
International Union, United Mine Workers of America v. U.S. Department
of Labor, 358 F.3d 40 (D.C. Cir. 2004), but the case is inapposite. Con-
trary to the majority’s assertions, International Union is not a case where
the agency was embarking on a “discretionary course of action.” Maj. op.
at 18769. Rather, the agency there was acting pursuant to a statutory obli-
gation imposed by the Mine Safety and Health Act, which states that
“[t]he Secretary shall . . . develop, promulgate, and revise . . . improved
mandatory health or safety standards for the protection of life and preven-
tion of injuries in coal or other mines.” 30 U.S.C. § 811(a) (emphasis
added); see also 358 F.3d at 41. As already noted, when an agency has an
obligation to act, its failure to do so is reviewable. See pp. 18773, 18780-
81 supra. International Union says nothing whatsoever about the situation
presented here, where the agency has no obligation to act.
18784 ANIMAL LEGAL DEFENSE v. VENEMAN
Marshall’s concurrence as repudiated by the majority.10
Chaney, 470 U.S. at 850 n.7 (Marshall, J., concurring); see
also Judicial Review of Agency Inaction, supra, at 264 n.1
(listing NRDC among the cases inconsistent with Chaney).
Justice Marshall strongly disagreed that agency refusals to act
are presumptively non-reviewable, but wrote only for himself;
eight Justices joined in the opinion.
2. Even on its own terms, the majority is wrong. Assum-
ing standing, assuming reviewability, assuming the cases the
majority relies on are still good law, judicial review is still not
justified. The majority extracts from the DC Circuit cases two
requirements for reviewing non-adoption of a regulation and
finds both satisfied. Maj. op. 18769-71. In fact, there are two
additional requirements. First, the agency’s regulatory process
must have come to an end. See Ctr. for Auto Safety v. Nat’l
Highway Traffic Safety Admin., 710 F.2d 842, 847-48 (D.C.
Cir. 1983) (action not ripe if the agency “has left open the
possibility that the agency will initiate new rulemaking pro-
ceedings at some point in the future”). Second, the agency
must have “explained in detail its reason for not adopting
those rules.” NRDC, 606 F.2d at 1047. Neither requirement is
satisfied here.
a. It is perfectly clear that the agency’s decision-making
process has not come to rest. Dr. Gipson’s announcement that
the rulemaking had been terminated adds as follows: “USDA
and NIH had agreed to develop best management practice
guidelines concerning nonhuman primates.” The agency has
not abandoned its effort to give further guidance as to the
management of primates. Rather, it has shifted focus toward
other means of implementing that objective.
10
While Justice Marshall’s opinion is styled a concurrence, he vigor-
ously dissented from the majority’s central holding that an agency’s deci-
sion not to enforce is presumptively non-reviewable. 470 U.S. at 853-55
(Marshall, J., concurring).”
ANIMAL LEGAL DEFENSE v. VENEMAN 18785
In Center for Auto Safety, on which the majority relies, the
agency terminated rulemaking, but “left open the possibility
that the agency [would] initiate new rulemaking proceedings
at some point in the future.” 710 F.2d at 847 (emphasis
added). Because the agency still “ha[d] a chance . . . to
amend” its existing regulations, the DC Circuit concluded that
judicial review of the refusal to do so at that time would have
“entangl[ed] [the courts] in abstract disagreements over
administrative policies.” Id. at 848 (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 148 (1967)). Here we have not
merely a possibility that the agency will resume the regulatory
process at some unspecified future time; we know it’s doing
so now. If review was premature in Center for Auto Safety, it
is previable here.11
The majority’s ruling also conflicts with Ecology Center,
Inc. v. United States Forest Service, 192 F.3d 922, 926 (9th
Cir. 1999), which held that the monitoring of forest activity
was not reviewable. The Forest Service there published
reports that were not interlocutory or tentative, but the moni-
toring itself was one of the “steps leading to an agency deci-
sion, rather than the final action itself.” Id. at 925. Thus, it did
not “mark the consummation of the agency’s decision making
process,” id., and review was premature. Here, Dr. Gipson’s
declaration is not the end point of the agency’s decision mak-
ing, but only a step along the way. It is no more reviewable
than the reports in Ecology Center.
11
Action may be final even if some degree of uncertainty lingers. But
the majority cites no case reviewing a policy currently undergoing trans-
formation. In Her Majesty the Queen in Right of Ontario v. EPA, 912 F.2d
1525, 1532 (D.C. Cir. 1990), the court found that the agency’s statement
was “devoid of any suggestion that it might be subject to subsequent revi-
sion.” Here, of course, USDA’s primate policy is still up in the air. Like-
wise, in American Petroleum Institute v. EPA, 906 F.2d 729, 739-40 (D.C.
Cir. 1990) (per curiam), the possibility of “unforeseen amendments” did
not render the decision unripe. Here, the change in policy is not only fore-
seeable; it’s in progress.
18786 ANIMAL LEGAL DEFENSE v. VENEMAN
Review of interlocutory agency statements hopelessly
entangles the judiciary in the administrative process. The
agency here cannot have two policies on the same issue: It
can either adopt something like the Draft Policy, or it can
adopt best management practice guidelines like the ones it is
now considering. By allowing this lawsuit to proceed, the
majority leaves open the possibility that the agency will be
forced or coaxed into adopting the Draft Policy.12 Even if the
agency prevails before the district court, further agency pro-
ceedings will be delayed at least until the next appeal—which
may be years away. Until this lawsuit is over, the agency can-
not implement best practice guidelines, which may take the
agency in a different direction from the Draft Policy. The
majority thus interferes with the agency’s ongoing consider-
ation of a live issue.
b. The majority ignores an additional requirement in the
DC Circuit case law—that the agency “explain[ ] in detail its
reasons for not adopting those rules.” NRDC, 606 F.2d at
1047.
In the cases the majority cites, see maj. op. at 18766-71, the
agencies all provided reasons a court could evaluate. NRDC,
the cornerstone of the majority’s argument, involved “lengthy
explanatory statements,” id. at 1039, that the DC Circuit
repeatedly referenced in affirming the agency’s decision. Id.
at 1058-59, 1061-62. In Professional Drivers Council v.
Bureau of Motor Carrier Safety, 706 F.2d 1216 (D.C. Cir.
1983), the agency published its reasons for terminating its
rulemaking, id. at 1220, and the DC Circuit upheld the agency
by reviewing the “relevant, permissible factors” upon which
the agency relied. Id. at 1222. In Center for Auto Safety, the
agency also published its reasons for withdrawing the policy,
12
As I note above, we have no way of doing this. See pp. 18773-74
supra. But the agency can’t be sure until the litigation comes to an end.
It must therefore delay implementation of best practice guidelines so long
as litigation over the Draft Policy continues.
ANIMAL LEGAL DEFENSE v. VENEMAN 18787
710 F.2d at 844, but the court never reached the issue. See p.
18785 supra. And in International Union, the agency pro-
vided three reasons, which the court then reviewed. 358 F.3d
at 44.
By contrast, the agency here hasn’t provided a detailed
explanation as to why it abandoned the Draft Policy, or any
reason at all. We have only Dr. Gipson’s announcement that
“the USDA was not going forward with the Draft Policy on
Environmental Enhancement for Nonhuman Primates.” With-
out an explanation for the agency’s refusal to adopt the Draft
Policy, it is impossible to determine whether its decision is
arbitrary or capricious. Even if we assume that the agency did
so for reasons contained in the record, we don’t know what
those reasons are. Judicial review would thus “have an unde-
sirably abstract and hypothetical quality.” NRDC, 606 F.2d at
1047.
What are the district judge and the parties to do on remand?
The judge can certainly review the record for comments sup-
porting and opposing the Draft Policy, but how is he to deter-
mine which of them are legitimate and which aren’t? What
weight is he to give the various arguments? Considering and
weighing public comments, then deciding whether to adopt,
reject or modify a proposed rule is a quintessentially adminis-
trative function. It calls for the kind of expertise a district
judge does not have and the kind of policy judgment a district
judge is not competent to make. It is simply not a judicial
function. Reviewing an agency decision where there is no
agency decision to review is much like making ham and eggs
without ham or eggs. It is precisely for this reason that the DC
Circuit cases on which the majority relies require an explicit
and detailed statement of reasons from the agency as a condi-
tion for judicial review. By ignoring this crucial requirement,
the majority sends the parties and the district court on a fool’s
errand.
* * *
18788 ANIMAL LEGAL DEFENSE v. VENEMAN
The majority expands the law of standing beyond recogni-
tion. It unmoors administrative law from sound principles of
judicial review, and insinuates the federal courts into sensitive
policy judgments that are the exclusive province of the Exec-
utive Branch. It ignores the teachings of the Supreme Court
and misapplies the precedents it relies on. It will cause no end
of mischief. Count me out.