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Jim Lang, Waterfront Law Team

Overturning an Environmental Agency Decision – Waterfront Law Team Webinar Recap

August 28, 2023 | Webinars, | Environmental Law

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What We Covered in Our Webinar

In our latest webinar, Jim Lang of the Waterfront Law Team discusses the difference between cases involving environmental agency decisions, how they differ from a “normal” civic case, and things you can do to increase your chances of winning.

You can download the slides from this webinar here.

Situations Where Judicial Review Could be Important

  • The VMRC grants a permit for installation of 5 acres of floating oyster cages in the water next to your property
  • Your neighborhood of 250 homes suffers from flooding but a citizen’s environmental group filed a lawsuit challenging the wetlands permit issued by the USACE – their lawsuit has stalled installation of the new flood control system and could result in the project being cancelled
  • The DEQ or local government issues a stop work order at a construction site because of an alleged violation of the stormwater rules, or the erosion and sediment control rules
  • State agency refuses to issue a permit that duck hunter needs to erect stationary blind on shore or in nearby public waters

What Does a “Win” Look Like?

It’s simple, a win would mean the Court vacates the agency decision and sends the matter back to the agency to address the errors that the Court identified. The Court DOES NOT select the outcome for the agency

How Do You Get the Case Into Court?

Once the case makes it to court, there are a few things one must consider. Be sure to bring the case in the correct court, be sure to have a “standing” (injury, the agency decision “caused” the injury and the remedy sought will "redress" the injury), be sure to exhaust all administrative remedies (“final” agency action), be sure to meet filing deadlines and be sure to serve the right papers at the proper places. Lastly, don’t forget there may be a filing fee!

Standard of Review


  • Virginia Administrative Process Act, Va. Code 2.2-4000 to 4031
  • Judicial deference for facts found by the agency
    • “the duty of the court with respect to issues of fact shall be limited to ascertaining whether there was substantial evidence in the agency record upon which the agency as the trier of the facts could reasonably find them to be as it did” (quoting Va. Code 2.2-4027)
    • Courts “have authority to reject agency factfinding only if, considering the record as a whole, a reasonable mind would necessarily come to a different conclusion” (Campbell v. Dep’t of Forestry (Va. Ct of App. 2005))
    • No judicial deference for procedural errors or errors of law


  • (Federal) Administrative Procedure Act, 5 U.S.C. 701 to 706
  • Standard of review mirrors the points made regarding standard of review on the prior slide

How Cases of This Type Differ from “Normal” Civil Cases

As the webinar title mentions, Jim discusses how these cases might differ from a “normal” case – no jury, the “administrative record” is the sole source of evidence, standard of review favors the agency and there may be potential to recover some if not all of the legal fees if there is a win.

Things You Can Do To Increase Chance of Winning

Lastly, to help bolster your chances of winning, Jim shared the following suggestions to ensure success. First, find an attorney who is well versed in litigation of this type. Second, get the attorney involved in the earliest stages. And third, if you wait too long the attorney may not have the material in the administrative record that he or she needs in order to win your case.

Additional Resources

Dealing with Government Agency Decisions: Can You Take the Government to Court?

Federal Court Case Victory Will Protect 250+ Homes in Virginia Beach From Stormwater Flooding


About The Author

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Jim uses waterfront (riparian) property rights law, maritime & admiralty law, and environmental law to protect Virginians who live, work and play on the water. Contact Jim at (757) 502-7326 or jlang@pendercoward.com.