I. Introduction

Since the introduction of the APA in 1946, administrative law has held that third parties may intervene in agency actions so long as they qualify as an “interested person.”[1]  In the context of environmental litigation, non-profit animal and environmental protection organizations may qualify as interested persons eligible to intervene in agency action if they meet certain criteria.  The D.C. District Court recently elaborated on the criteria that these organizations must meet to participate as an interested party in agency adjudications in Animal Legal Defense Fund, Inc. v. Vilsack.[2]

A. Brief Legal Background of Administrative Standing

Although the Administrative Procedure Act (“the APA”) does not define the term “interested person,” the D.C. Circuit has held that an individual or entity with Article III standing to seek judicial review of an agency action qualifies as an interested party.[3]  The threshold for administrative standing as an interested party is lower than judicial standing under Article III such that a broader purview of individuals and organizations may have standing to intervene in an agency action.[4]  As scholars have argued, administrative standing expands on case law that grants standing to plaintiffs based on an implied right of action enabled by a statute.[5]  The lower threshold for administrative standing depends not on the constitutional requirement of injury or causation, but rather on whether the plaintiff’s interest is in the range of statutorily protected interests.[6]

B. Procedural History of Animal Legal Defense Fund

The dispute in Animal Legal Defense Fund arose out of a decision by a judicial officer of the United States Department of Agriculture (“USDA”) to uphold an administrative law judge’s denial of the Animal Legal Defense Fund’s (“ALDF”) request to intervene in an enforcement action.[7]  The USDA had initiated an administrative enforcement action against a family-owned Iowa zoo for alleged violations of the Animal Welfare Act (“AWA”), and the ALDF, a long-time critic of the zoo’s practices, sought to intervene in the agency’s administrative proceeding.[8]  However, the administrative law judge denied the ALDF’s request.[9]  The denial was subsequently upheld by the USDA’s Judicial Officer who stated that the ALDF’s interests were beyond the scope of the proceedings.[10]  The ALDF challenged this decision in district court, where it argued that the Judicial Officer’s decision impermissibly contravened Section 555(b) of the APA, which permits “interested persons” to intervene in an agency’s proceedings.[11]

At the district court level, both parties moved for summary judgment, and in a concise and lucid opinion, the court found in favor of the ALDF.[12]  Although the court agreed that the Judicial Officer’s stated reason for denying the ALDF’s request was valid grounds for denial, the court disagreed that the record supported the denial.[13]  First, the court noted that the record indicated that ALDF had three distinct interests: (1) an interest in rescinding the zoo’s exhibitor license due to its repeated violation of the AWA; (2) a general interest in animal welfare; and (3) a specific interest in the health and treatment of animals at the zoo.[14]  The first reason, the court held, went beyond the scope of the proceedings.  To make this finding, the court relied on another D.C. District Court decision, ALDF v. Vilsack, which held that the ALDF could not challenge the USDA’s decision to renew the zoo’s exhibitor’s license. [15]  Interestingly, that decision has since been reversed by the D.C. Circuit and thus, arguably, the first of ALDF’s interests in the present case may actually be within the scope of the proceedings.[16]  Regardless, the court found that the combined interests of (2) and (3) were “squarely implicated by the enforcement proceeding.”[17]  The court reasoned that the ALDF’s interests both in rescinding the zoo’s license due to its AWA violations and in protecting animal welfare would be impaired if the agency’s adjudication failed to provide care for the zoo animals, or if it resulted in insufficient sanctions of the zoo’s conduct.[18]

II. The D.C. District Court Identified Three Policy Reasons for Granting the ALDF Interested Party Status

In reaching its holding, the court noted three valuable reasons why the ALDF should be included in the agency’s enforcement action as an interested third party.  First, the court advised that “a third party can offer relevant evidence as to liability or expertise with respect to appropriate remedies. . . .”[19]  In a situation like the one in Animal Legal Defense Fund, where a third-party organization has had repeated dealings with the target of enforcement, that organization may provide insight into the case the agency otherwise lacks.

Second, the court advised that a third party may enhance the enforcement power of the administrative agency.[20]  In a case where the intervener claims the agency has failed to vigorously enforce a regulation, like the ALDF claimed, the agency should as a matter of policy entertain the third party’s contention that the agency cannot be trusted to enforce its rules in a particular case at the administrative level.

Third, the court noted that a third party may be able to assist the agency in its decision-making to the extent that it can provide both helpful evidence concerning regulatory violations and useful insight as to what remedy is most appropriate.[21]  This means that although a third party’s evidence and legal insight may be duplicative of the agency’s, the agency should examine the third party’s evidence and determine whether it is original and beneficial before dismissing the third party’s claims.

That the court identified these reasons as the basis in policy for enabling third party intervention at the agency level suggests that the focus of administrative standing, unlike Article III standing, is not the existence of an injury or causation with respect to the third party.  Rather, the D.C. District Court’s analysis shifts the focus to whether the third party asserts an actual or threatened injury to an interest protected by a statute.  The court did not consider relevant whether the ALDF itself was injured, but instead whether the ALDF alleged actual or potential harm to an interest protected by the AWA.  This effectively does away with the stringent requirements of Article III standing while still providing sufficient parameters—whether the third party asserts harm to a statutory protected interest—to determine if a third party qualifies as an interested person who may intervene in an agency action.

III.  Animal Legal Defense Fund Announced a Procedural Rule Which Contains a Standard for Determining Third-Party Administrative Standing

Implicit in the court’s holding is a procedural rule, or judicial protocol for determining third party standing: when a third party requests to intervene in an agency action, the agency must perform an initial statutory analysis to determine whether and to what degree the third party’s claim falls within the purview of interests protected by the statute.  The court would have to employ a two-step process.  First, the court must determine whether a party’s interests are covered by the statute.  If they are, then the party qualifies as an interested person.  Second, the court must determine to what extent a party’s interests overlap with the statutory protections.

Just as the D.C. District Court noted, if the agency determines that the third party’s asserted interest is only marginally protected by the statute, then the agency may limit the third party’s participation as appropriate.[22]  Thus, Section 555(b) of the APA gives agencies ample authority to determine the nature of an intervener’s participation in the agency proceedings.[23]  For instance, if the agency determines that a third party claim asserts an interest that is only partially protected by the statute, the agency may limit the third party’s participation to supplemental briefing.  If, on the other hand, the agency concludes that the third party asserts an interest that is wholly protected by the statute, it may allow for the third party’s direct intervention in the agency proceeding.  In each instance, the third party qualifies as an interested party under the APA, but the agency retains the authority to determine the degree of interest the third party bears with respect to the particular agency action it seeks to intervene in.

The D.C. District Court, somewhat implicitly, performed the statutory analysis discussed above to reach its conclusion in Animal Legal Defense Fund.  The court determined that the ALDF’s interests in both animal welfare and the health and treatment of the animals at the zoo rendered the ALDF an interested party because the AWA was designed to protect animal welfare and to establish standards of care for exhibited animals.[24]  In other words, the court found that the combination of an interest in general animal welfare and an interest in curtailing a specific zoo’s failure to ensure animal welfare was enough to render the ALDF an interested person.  It is important to note that the court’s ruling gives a great degree of deference to the agency’s authority to perform the interested person analysis.  However, that agency authority must be judicially reviewable because the court thought the USDA acted arbitrarily and capriciously by finding that the ALDF did not fit the interests protected by the AWA.[25]

Although the court’s ruling establishes that the APA itself, and not agency regulations, supply the basis for administrative standing, it is worth noting that the court considered whether the USDA Rules of Practice provided the ALDF with separate grounds for relief.[26]  At the agency level, the Judicial Officer determined that the Rules of Practice, contrary to the ALDF’s assertion, do not provide grounds either for denying or enabling the ALDF’s intervention.[27]  The D.C. District Court agreed with the Judicial Officer’s reading of the Rules and found that they provided no separate basis for interested party intervention.[28]  As a practical matter, this means that the court’s ruling with respect to the ALDF’s viability as an interested party depends solely on sections 554(c) and 555(b) of the APA and not on the specific Rules of Practice governing the USDA.  In fact, section 1.133(a) of the USDA Rules of Practice, which governs the submission of information concerning apparent violations by “[a]ny interested person,” explicitly states that any such submission must be made “in accordance with . . . any applicable statutory or regulation provisions.”[29]  Although they do acknowledge that the broad category of interested persons may submit information about apparent violations of its regulatory authority, the USDA Rules of Practice explicitly indicate that the legal basis for such submissions is statutory and not in the Rules themselves. Thus, the D.C. District Court’s rule for determining whether a third party qualifies as an interested person in an agency proceeding is not strictly limited to claims against the USDA because the court found no legal basis in the Rules of Practice to enable third party submissions.

IV. The Rule from Animal Legal Defense Fund May is Applicable to Other Forms of Environmental Litigation

Given that the D.C. District Court’s holding relies on the statutory basis for administrative standing, one could imagine different scenarios in which the court’s rule would be applicable to third party challenges to administrative agency proceedings in the context of environmental litigation.  Although the full spectrum of environmental claims in which Animal Legal Defense Fund’s procedural rule may apply is beyond the scope of this Post, there are two sets of claims that are worth considering: (1) interested person participation in agency enforcement actions against individuals and organizations that appear to violate USDA organic regulations; and (2) interested person participation in agency enforcement actions against individuals and organizations that appear to violate the Clean Water Act (“CWA”).

A. Administrative Standing in USDA Organic Regulatory Litigation

The first set of claims oftentimes involves allegations of improper or misleading organic labeling on food products.[30]  The USDA organic regulations establish that any agricultural product represented as “100 percent organic,” “organic,” or “made with organic (specified ingredients or food group(s))” must be produced and handled in compliance with the standards outlined in the provisions of sections 205.101 through 205.272 of the Organic Foods Production Act.[31]  On its website, the USDA states that “[a]nyone who suspects a violation of the USDA organic regulations” can file a complaint against a company with the agency.[32]  The USDA further explains that after a complaint is filed, the National Organic Program will determine whether to proceed with an investigation.[33]  If such an investigation results in a confirmation that a violation has taken place, then the offending “operation could be subject to financial penalties up to $11,000 per violation or suspension or revocation of its organic certificate.”[34]  The formal noncompliance procedure for enforcing violations of organic regulation involves notifying the violator of the specific issues of noncompliance and allowing them to respond by resolving the issues, entering into mediation, or filing an appeal.[35]  The enforcement action relevant to the purposes of this Post is an appeal pursuant to section 205.681, which involves submitting a filing to the Administrator explaining the reasons for believing a compliance decision was not proper.[36]

Because the USDA is subject to the provisions of the APA, a third party in possession of substantial evidence of organic regulation violations, analogous to how the ALDF in Animal Legal Defense Fund possessed evidence of the zoo’s AWA violations, could have administrative standing to intervene in an organic regulation enforcement action.  That is, the implicit rule of Animal Legal Defense Fund—that a third party qualifies as an “interested person” if it can be said that its claims involve statutorily protected interests—could enable a third party to provide the USDA with its unique evidence of organic regulation violations at the appellate stage of a compliance determination.  As in Animal Legal Defense Fund, the USDA would retain the authority to determine to what extent the third party’s claims fall within the range of statutorily protected interests.  The agency would thus be able to tailor the degree and manner of third party involvement in accordance with the relevance of its claims to interests protected by the Organic Foods Production Act.

B. Administrative Standing in CWA Regulatory Litigation

The second set of claims—interested person claims for violations of the CWA—are more expressly integrated into the enforcement procedure under the CWA than are interested party claims in the context of AWA or organic regulations violations.[37]  However, the enforcement section of the CWA, section 1319, procedurally limits interested person involvement in enforcement of CWA violations, permitting third party submissions only after the EPA has found a violation and proposed a penalty.[38]  It thus seems that applying the procedural rule from Animal Legal Defense Fund to interested person participation in EPA enforcement of CWA violations could broaden a third party’s influence in the agency’s enforcement action.  The rule in Animal Legal Defense Fund would require the EPA to analyze whether a third party’s alleged interest[39] in an enforcement action was covered under the set of interests protected by the CWA before making its determination of whether a violation occurred.  Rather than wait to hear third party claims at a late procedural phase, the rule announced in Animal Legal Defense Fund would enable a third party to participate directly in an EPA enforcement action and decision-making process as it develops.  Of course, the EPA would retain the authority to determine the nature and manner of the third party’s involvement, as it is expressly permitted to do under APA section 555(b).[40]

V. Conclusion

The lower threshold for administrative standing has remained a murky dimension of agency regulation and enforcement proceedings.[41]  In Animal Legal Defense Fund v. Vilsack, however, the D.C. District Court articulated criteria for determining administrative standing that illuminated this otherwise opaque area of the law.  In doing so, the court identified a clear standard for determining whether a party qualifies as an interested person: the agency must first determine whether the third party’s claims fall within the set of statutorily protected interests.  Because this rule is both broadly applicable yet concrete in terms of the analysis it requires, it may be helpful to enable third party participation in other areas of environmental litigation.  This Post identified possible challenges to USDA organic regulations violations or interested party participation in enforcement of the CWA as a context in which the D.C. District Court’s rule may apply.  Environmental litigators interested in increasing the influence of their advocacy before administrative agencies should therefore consider the persuasive force of Animal Legal Defense Fund’s procedural rule when making the case for their clients’ right to participate in agency actions.

[1] 5 U.S.C. § 555(b).

[2] Animal Legal Defense Fund v. Vilsack, 237 F. Supp. 3d 15 (D.C. Cir. 2017).

[3] Nichols v. Bd. of Trs. of Asbestos Workers Local 24 Pension Plan, 835 F.2d 881, 896 (D.C. Cir. 1987).

[4] “Agencies, of course, are not constrained by Article III of the Constitution; nor are they governed by judicially-created standing doctrines restricting access to the federal courts.”  Envirocare of Utah, Inc. v. Nuclear Regulatory Comm’n, 194 F.3d 72, 73 (D.C. Cir. 1999).  See also Fund Democracy, LLC v. S.E.C., 278 F.3d 21, 25 (D.C. Cir. 2002) (“Because agencies are not constrained by Article III, they may permit persons to intervene in the agency proceedings who would not have standing to seek judicial review of the agency action.”)

[5] Kevin A. Coyle, Standing of Third Parties to Challenge Administrative Actions, 76 Cal. L. Rev. 1061, 1086–87 (1988).

[6] Id.

[7] Id. at 18.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Animal Legal Defense Fund v. Vilsack, 237 F. Supp. 3d 15, 25 (D.C. Cir. 2017).

[13] Id. at 23.

[14] Id.

[15] 169 F. Supp. 3d 6, 17 (D.D.C. 2016).

[16] Animal Legal Defense Fund, Inc. v. Perdue, 872 F.3d 602 (D.C. Cir. 2017).

[17] Animal Legal Defense Fund, 273 F. Supp. at 25.

[18] Id.

[19] Id. at 23–24.

[20]  Id. at 23.

[21] Id. at 24.

[22] Id. at 24; 5 U.S.C. § 555(b).  Various secondary sources cited by the ALDF in their brief, including the Attorney General Manual on the APA and Richard J. Pierce’s treatise on administrative law, support the finding of a third party participatory right that may be limited only so far as the orderly conduct of business permits.  See Plaintiff’s Motion for Summary Judgment and Supporting Memorandum, Animal Legal Defense Fund v. Vilsack, 237 F. Supp. 3d 15 (D.C. Cir. 2017) (No. 16-cv-00914); Richard J. Pierce, Admin. L. Treatise § 16:10 (2010).

[23] 5 U.S.C. § 555(b). (enabling interested person intervention in agency proceedings “[s]o far as the orderly conduct of business permits. . . . ”); Nichols v. Bd. of Trs. of Asbestos Workers Local 24 Pension Plan, 835 F.2d 881, 897 (D.C. Cir. 1987).

[24] Animal Legal Defense Fund, 273 F. Supp. at 23; 7 U.S.C. § 2131.

[25] Animal Legal Defense Fund, 273 F. Supp. at 23.

[26] Id. at 25.

[27] Id.

[28] Id.

[29] The full text of the relevant provision of the USDA Rules of Practice is:

Any interested person desiring to submit information regarding an apparent violation of any provision of a statute listed in § 1.131 or of any regulation, standard, instruction, or order issued pursuant thereto, may file the information with the Administrator of the agency administering the statute involved in accordance with this section and any applicable statutory or regulation provisions. Such information may be made the basis of any appropriate proceeding covered by the rules in this subpart, or any other appropriate proceeding authorized by the particular statute or the regulations promulgated thereunder.

USDA Rules of Practice Governing Formal Adjudicatory Administrative Proceedings Instituted by the Secretary, 7 C.F.R. § 1.133(a) (2018).

[30] How to File a Complaint on Organic Regulations, U.S. Dept. of Agriculture, https://www.ams.usda.gov/services/enforcement/organic/file-complaint (last visited June 30, 2018).

[31] 7 C.F.R. § 205.102 (2010).

[32] Supra note 30.

[33] Id.

[34] Id.

[35] 7 C.F.R. § 205.662 (2015).

[36] 7 C.F.R. § 205.680–.681 (2008).

[37] 33 U.S.C. § 1319(g)(4)(A)–(C) (enabling interested persons to comment on or petition for a hearing regarding a civil penalty for CWA violations proposed by the EPA).

[38] Id.  See also Mark Seidenfeld, The Friendship of the People: Citizen Participation in Environmental Enforcement, 73 Geo. Wash. L. Rev. 269, 277–79 (2005).

[39] Such an interest might be claimed by, for instance, a non-profit organization generally committed to ensuring the public availability of clean drinking water.

[40] See Nichols v. Bd. of Trs. of Asbestos Workers Local 24 Pension Plan, 835 F.2d 881, 897 (D.C. Cir. 1987) (explaining that agencies have broad “authority to shape the manner in which intervenors will participate.”)

[41] See generally Coyle, supra note 5.