Ripeness/Finality

As you know now, agency processes for decisionmaking can take some time. What if you don't want to wait until those processes are finished--say, for instance, that you strongly suspect that the agency is about to finalize its rule, or that the agency is about to bring an enforcement case against you. Can you jump ahead and head to federal court? The answers to questions like these turns on two closely related doctrines: ripeness and finality.

Ripeness potentially bars judicial review when an agency has not yet taken action against someone who wants to beat the agency to the courthouse. Imagine, for instance, that somebody anticipates that a new agency rule that requires power plants to install certain technological pollution controls will be enforced against them because they do not have the technological pollution controls installed. Even though we have a final agency action (the rule), the courts would ask whether a pre-enforcement challenge of that rule is ripe for judicial consideration. Courts typically apply a two-factor test to determine whether the issue is ripe for review: 1) whether the issues are suited to immediate review, and 2) the hardship to the challenger that would result from delaying review for the time being (i.e., until the rule is enforced). See Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).

For finality, the question is slightly different. Here, the agency may very well be doing something that has an immediate impact on the challenger, but it may not count as final agency action. Suppose that an agency has told you it is beginning the process of bringing an enforcement action against you and will give you an opportunity to contest the penalties before an agency adjudicator, but that this process can take a while before the agency actually issues its decision. Under APA Section 704, only final agency action is reviewable, and courts have developed another two-part test to determine whether agency action is final: 1) the action must mark the consummation of the agency's decionmaking process rather than being merely tentative or interlocutory, and 2) the action must be one which affects legal rights or determines obligations that have discernible legal consequences. See Bennett v. Spear, 520 U.S. 154 (1997).

Both of these tests are deceptively difficult to apply. See how the Court applied them in the following three cases, the first two of which involve ripeness, and the latter of which involved finality.