Judicial Review of Agency Discretion

Authors

• Lisa S. Bressman, Vanderbilt University Law School
• Daniel T. Deacon, University of Michigan Law SchoolFollow
• Glen Staszewski, Michigan State University College of Law

Document Type

Book Chapter

Publication Date

2026

Abstract

Agencies exercise discretion when they make a choice among alternatives that are legally available to them. Such choices come in many different forms. An agency may grant a permit, deny it, or grant it with conditions. It may pro­mulgate a rule that sets specified limits on pollution, and it may or may not afford transition relief to existing sources. Or it may levy a fine against an indi­vidual and decide how high that fine should. be. To the extent the agency is afforded options in making these determinations, it is exercising discretion. This chapter concerns judicial review of agencies' discretionary decision making.

n determining whether the standards governing agencies' discretionary decisionmaking apply, the initial question is whether the agency has been afforded a choice at all. If a statute specifies that the fine for a particular violation is $1,000-not higher or lower-an agency that imposes a different fine has made a legal error and not an error of judgment in the face of various available alternatives. If, on the other end of the spectrum, a statute expressly provides the agency flexibility to levy whatever fine it deems appropriate within a specified range, an agency that selects a fine within the prescribed range has exercised its discretion, and its decision is reviewed under the stan­dards discussed in this chapter.

Comments

© 2026, Published in A Guide to Judicial Review of Federal Agencies, 2026, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Publication Information & Recommended Citation

Schultz Bressman, Lisa, Daniel Deacon, and Glen Staszewski. "Judicial Review of Agency Discretion." In A Guide to Judicial Review of Federal Agencies, edited by William Funk and Michael E. Herz, 205-257. 3rd ed. Chicago, IL: ABA Book Publishing, 2026.