Kansas Natural Resource Coalition v. Department of the Interior, et al.

To ensure democratic accountability over the administrative state and respect for the separation of powers, the Congressional Review Act (CRA) provides that no agency rule can take effect until the agency submits it to Congress for review. 5 U.S.C. § 801(a)(1). The Department of the Interior has violated the CRA by withholding from Congress a rule encouraging voluntary conservation of wildlife. Kansas Natural Resource Coalition (KNRC) has developed a conservation plan for the lesser prairie chicken that relies on the unsubmitted rule to incentivize landowner participation. KNRC timely challenged Interior’s CRA violation, alleging a procedural injury affecting KNRC’s interest in the species, its conservation plan, and the proper consideration of that plan in Interior’s upcoming decision whether to list the species under the Endangered Species Act. Contrary to decisions of this Court and several other circuits, a panel of the Tenth Circuit held, over a dissent, that KNRC lacks standing because the outcome of that listing decision is uncertain and that agency violations of the CRA are not reviewable. The questions presented are:

1. Whether a party vindicating a procedural injury lacks standing unless it can establish with certainty that procedural compliance would change the outcome of subsequent agency action.

2. Whether, under the strong presumption favoring judicial review of agency action, agency violations of the CRA’s rule-submission requirement are subject to judicial review.