December 29, 2008

Failure to act on emergency petition not reviewable

By Failure to act on emergency petition not reviewable

So ruled the DC District Court last week in Wildearth Guardians v. Kempthorne.  The court held that the failure to act on an emergency petition (or the denial of an emergency petition) under 16 USC 1533(b)(7) to list a species is not judicially reviewable under either the ESA citizen suit provision or the APA.  The court reasoned that the decision whether to act on an emergency petition is committed to the Secretary's discretion by law.

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