(not So) Desperate Times Call for (not So) Desperate Measures: the First Use of Remand Without Vacatur in the Eleventh Circuit
| Publication year | 2016 |
(Not So) Desperate Times Call for (Not So) Desperate Measures: The First Use of Remand Without Vacatur in the Eleventh Circuit
Rebekah L. Hogg
[Page 1025]
In Black Warrior Riverkeeper, Inc. v. United States Army Corps of Engineers,1 as a matter of first impression for the United States Court of Appeals for the Eleventh Circuit, the court of appeals issued "remand without vacatur."2 In civil cases, remand without vacatur applies solely to suits questioning the validity of federal administrative regulations,
[Page 1026]
and courts use this remedy sparingly. Just five circuit courts have applied remand without vacatur, and only the United States Court of Appeals for the District of Columbia has employed the remedy with any frequency.3 Black Warrior Riverkeeper involved two environmental groups alleging the Army Corps of Engineers (the Corps) lacked justification for Nationwide Permit 21 (NWP 21),4 which allowed surface mining operations in Alabama to discharge material into the Black Warrior River.5
In a two-to-one decision, the court remanded but did not vacate the permit, thereby giving the Corps an opportunity to provide additional information and avoiding the possibility of undue economic disruption to the mining companies operating under the permit.6 This decision allows federal agencies to request a remand without vacatur to allow time for revisions to faulty regulations and permits. While some commentators support remand without vacatur as a means of promoting judicial efficiency, others argue it fails to hold federal agencies accountable because it moderates the repercussions associated with enacting substandard or arbitrary regulations.7 Remand without vacatur is a needed remedy that applies in cases where there is minimal information
[Page 1027]
to base a decision impacting federal agencies, regulated entities, and the general public.8
A. Background
The Clean Water Act (CWA)9 authorizes the Corps to issue permits allowing companies to discharge materials into public waters.10 Before issuing a permit, the Corps must first determine the amount of pollution will not significantly affect the environment.11 Black Warrior Riverkeeper involves one such permit, NWP21, which authorized surface mining companies to release dredge and fill materials into public waters.12 The Corps revised and renewed NWP21 in 2012, limiting the area of public waters the authorized mining operations could affect.13 This renewal also grandfathered in existing mining operations, including forty-one mining projects spanning twenty-seven miles of the Black Warrior River watershed in Alabama, to which the new limitations did not apply.14
Black Warrior Riverkeeper, Inc. and Defenders of Wildlife (collectively Riverkeeper)15 are environmentalist groups involved in the preservation of the Black Warrior River waters, including areas of the river downstream from surface mining sites grandfathered into the reauthorized NWP21. Members of Riverkeeper reported the discharges discolored the
[Page 1028]
water with sediment, negatively affecting the aesthetic, recreational enjoyment, and opportunities to observe aquatic life in the area. Riverkeeper also argued the cloudy appearance of the water causes concern about drinking the water and eating fish caught in it. Based on these reports, Riverkeeper feared the impurities might harm local wildlife and deter the public from using the river for recreation. This issue with polluted water was a particular problem in the Locust Fork of the Black Warrior River—one of the most popular Whitewater rafting destinations in Alabama.16
To counter these allegations, the Corps noted its compliance with the Administrative Procedure Act (APA),17 which requires publishing "statements of the general course and method" prior to the enactment of federal administrative regulations, such as the renewal of NWP21.18 The general statement accompanying NWP21 explained the Corps' rationale and concluded the cumulative environmental impact from surface mining operations would not exceed CWA limits.19 Furthermore, the Corps determined that NWP21 would not have a significant effect on the environment under the provisions of the National Environmental Policy Act (NEPA),20 and, therefore, the Corps need not provide a separate NEPA environmental impact statement.21
Riverkeeper disagreed with the Corps, noting several alleged deficiencies in the regulation. It asserted the most notable flaw in the general statement is a miscalculation of the amount of watershed area affected by the surface mining operations authorized by the permit. The Corps' calculations for the general statement assumed all operations would affect no more than a half-acre portion of the river or three
[Page 1029]
hundred feet of streambed. This calculation did not account for the reauthorized permits grandfathered in under NWP21(a). Approximately seventy reauthorized mining operations would affect more than the half-acre calculated in the report, and thus the amount of affected area would be greater than the area reported in the Corps' general statement.22
B. Procedural History
On November 25, 2013, Riverkeeper filed suit against the Corps in the United States District Court for the Northern District of Alabama. Riverkeeper aimed to block the reauthorizations granted under NWP21(a) and thereby avoid further alleged discharge and environmental damage.23 The complaint raised four claims: (1) the permit provides for an unlawful ten-year permit term because it grandfathered in previous operations; (2) the Corps' analysis of the impact of the permit was arbitrary and capricious; (3) the Corps' reissuance of the disputed permit was arbitrary and capricious; and (4) "the Corps' Finding of No Significant Impact under NEPA was arbitrary and capricious."24 After filing the complaint, Riverkeeper moved for a preliminary injunction to prevent further reauthorizations under NWP21. It also unsuccessfully moved for summary judgment against the Corps.25
The Alabama Coal Association and several mining companies (Intervenors)26 operating under NWP21 joined the action as intervenors, citing the harm an injunction would cause to their mining operations. The Corps filed a cross-motion for summary judgment, claiming the case failed on the merits. Soon thereafter, the Intervenors filed a motion to dismiss, claiming that (1) the environmentalist groups had no standing; (2) the action was barred by the doctrine of laches; and (3) the action against the Corps failed on the merits.27
The district court concluded that Riverkeeper had standing but laches barred the claims because the groups did not file suit in a timely manner. Further, the district court concluded the Corps acted neither arbitrarily nor capriciously in reauthorizing NWP21. Thus, the claim
[Page 1030]
would have failed on the merits if laches did not bar the claims. Therefore, the district court granted summary judgment to the Corps.28 Riverkeeper appealed, and in a case of first impression for the Eleventh Circuit, the court remanded without vacatur.29 On October 20, 2015, approximately seven months after the remand without vacatur, the district court reviewed the case based on the updated general statement and issued summary judgment in favor of the Corps, leaving NWP21 in place.30
A. Origin and Rationale of Remand Without Vacatur
Remand without vacatur originated in the District of Columbia Circuit in the 1970s with Kennecott Copper Corp. v. Environmental Protection Agency,31 when the court reasoned in that the general statement mandated in the APA might not include enough data and explanation for a court to fully understand and judge the reasonableness of a federal regulation.32 The court sought a solution that would avoid placing an undue burden on agencies while holding them accountable for the rationale behind their regulations.33 The court reasoned that remanding the regulation to a lower court without vacating the current version would allow the agency to expound upon the rationale behind the existing regulation, thereby avoiding the widespread effects of a shutdown of the mining companies operating under the regulation.34 This avoidance prevented any undue disruption if the issue with the regulation could be equitably remedied.35 The court specified that the explanation must be completed with "all reasonable expedition" to prevent the agency from stalling for an unreasonable amount of time if it does not actually have any justification for its regulation.36
There are two general scenarios in which remand without vacatur is applied: (1) where the federal regulation is "arbitrary and capricious" and the agency relied on either no factual foundation or an incorrect
[Page 1031]
factual foundation in deciding to enact the regulation; and (2) where there is no proper explanation of how the agency's decision was reached.37 In determining whether to remand with or without vacatur, courts consider the significance of the missing data or explanation and the potential disruptive consequences of vacating the regulation.38 If the alleged error is significant, then courts vacate the regulation and require the agency to either leave the regulation void or begin work on a new version.39 Alternatively, if additional data or explanation might easily remedy the inadequacy, then remand without vacatur allows the regulation to be quickly rewritten or expounded upon.40 This remedy promotes judicial efficiency and avoids disrupting the agency and entities operating under its regulations.41
Kennecott provides an example of remand without vacatur in instances of an allegedly arbitrary and capricious regulation. In Kennecott, the Kennecott Copper Corporation (Kennecott) claimed that an Environmental Protection Agency (EPA) regulation...
To continue reading
Request your trial