USA Law and Practice Contributed by: Mark Haskell and Lamiya Rahman, Blank Rome, LLP
however, that interpretive rules would become reviewable once incorporated into a binding final rule or to the extent they imposed concrete regu - latory burdens on a party (Institutional Share - holder Services Inc v SEC, 718 F. Supp. 3d 7, 19-20 (D.D.C. 2024)). Challenges to non-binding agency action may also be brought and sus - tained if the action is found to effectively function as a legislative rule and as a practical matter has a legally binding effect (see, eg, General Electric Co v EPA, 290 F.3d 377 (D.C. Cir. 2002)). 4. Nature of the Decision-Maker 4.1 Judicial Review of Commercial and Non-Governmental Decisions In general, governmental bodies or officials cannot be sued under the doctrine of sovereign immunity, unless the government has waived immunity. However, sovereign immunity is sub - ject to certain exceptions – for example, when the body or person has acted outside its author - ity (see, eg, Larson v Domestic & Foreign Com - merce Corp, 337 U.S. 682 (1949)). Governmental bodies may be subject to challenge in connec - tion with commercial contracts. See Contract Disputes Act, 41 USC Section 7102 et seq. 5. Ouster 5.1 Legislative or Contractual Limits on Judicial Review Congress can modify the scope of federal administrative review by statute. For example, the Mountain Valley Pipeline project was delayed by judicial challenges for many years. In 2023, Congress passed the Fiscal Responsibility Act of 2023. Section 324 of the Fiscal Responsibility Act mandated the issuance of permits necessary to complete the Mountain Valley Pipeline project
and stripped lower federal courts of appellate jurisdiction to delay or deny those approvals (Pub. L. No. 118-5, 137 Stat. 47 (2023)). The US Court of Appeals for the Fourth Circuit attempt - ed to stay the operation of the statute but its injunction was overturned by the US Supreme Court (Mountain Valley Pipeline, LLC v Wilder - ness Society, 144 S. Ct. 42 (2023)). While the terms of private contracts cannot modify the requirements of federal law per se, as noted above in 3.4 Agreements Between Private Enti- ties and Public Bodies , administrative agencies can enter into settlement agreements that can terminate pending litigation or end pending investigations. 6. Standing 6.1 Requirements for Administrative Law Challenges As noted in 2.1 Determining Susceptibility and 3.1 Challenging Primary Legislation , a party seeking to bring a challenge to administrative action in the US must demonstrate that it is aggrieved by the action or otherwise affected. 6.2 Charities and NGOs Under US Supreme Court precedent, associa - tions may have standing to sue, but must meet the same requirements to show injury in fact, causation and redressability that are applicable to individual plaintiffs (FDA v Alliance for Hippo - cratic Medicine, 602 U.S. 367, 382 (2024)) ( “An Article III court is not a legislative assembly, a town square, or a faculty lounge. Article III does not contemplate a system where 330 million citi- zens can come to federal court whenever they believe that the government is acting contrary to the Constitution or other federal law.” ).
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