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Case 3:20-cv-04636-WHA Document 143 Filed 07/01/21 Page 1 of 18
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`JEAN E. WILLIAMS
`Acting Assistant Attorney General
`VANESSA R. WALDREF (D.C. Bar No. 989692)
`Vanessa.R.Waldref@usdoj.gov
`LESLIE M. HILL (D.C. Bar No. 476008)
`Leslie.Hill@usdoj.gov
`ELISABETH H. CARTER (N.Y. Bar No. 5733274)
`Elisabeth.Carter@usdoj.gov
`Environmental Defense Section
`Environment & Natural Resources Division
`United States Department of Justice
`4 Constitution Square
`150 M Street, N.E.
`Suite 4.1133 (Waldref)/4.149 (Hill)/4.1406 (Carter)
`Washington, D. C. 20002
`Telephone: (202) 514-2741 (Waldref)
`(202) 514-0375 (Hill)
`(202) 514-0286 (Carter)
`Facsimile: (202) 514-8865
`
`Attorneys for Defendants
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`
`Case No. 3:20-cv-04636-WHA
`(consolidated)
`
`EPA’S MOTION FOR REMAND
`WITHOUT VACATUR
`
`Courtroom: 12, 19th Floor
`Date: August 26, 2021
`Time: 8:00 a.m. PDT
`
`
`
`In re
`
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`Clean Water Act Rulemaking
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`This Document Relates to:
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`Case 3:20-cv-04636-WHA Document 143 Filed 07/01/21 Page 2 of 18
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`Notice of Motion and Motion
`PLEASE TAKE NOTICE that, on August 26, 2021, at 8:00 a.m., or as soon thereafter as
`the matter may be heard, in the courtroom of the Honorable William Alsup, Courtroom 12, 19th
`Floor, 450 Golden Gate Avenue, San Francisco, California, or by telephone or webinar,
`Defendants United States Environmental Protection Agency and Michael S. Regan, in his official
`capacity as the Administrator of the United States Environmental Protection Agency
`(collectively, “EPA”), will and do respectfully move for remand without vacatur. The motion is
`based on this notice and the accompanying memorandum of points and authorities; any
`declarations, exhibits, and request for judicial notice filed in support of the motion; together with
`such oral and/or documentary evidence as may be presented at the hearing on this motion.
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`Case 3:20-cv-04636-WHA Document 143 Filed 07/01/21 Page 3 of 18
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`TABLE OF CONTENTS
`BACKGROUND .............................................................................................................................1
`STANDARD OF REVIEW FOR VOLUNTARY REMAND ........................................................6
`ARGUMENT ...................................................................................................................................6
`CONCLUSION ..............................................................................................................................12
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`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Am. Forest Res. Council v. Ashe,
` 946 F. Supp. 2d 1 (D.D.C. 2013),
` aff’d, 601 F. App’x 1 (D.C. Cir. 2015) .............................................................................9, 11, 12
`
`B.J. Alan Co. v. ICC,
` 897 F.2d 561 (D.C. Cir. 1990) .....................................................................................................9
`
`Cal. Communities Against Toxics v. EPA,
` 688 F.3d 989 (9th Cir. 2012) .......................................................................................................6
`
`Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta,
` 375 F.3d 412 (6th Cir. 2004) ...................................................................................................8, 9
`
`Ethyl Corp. v. Browner,
` 989 F.2d 522 (D.C. Cir. 1993) .....................................................................................................9
`
`FBME Bank Ltd. v. Lew,
` 142 F. Supp. 3d 70 (D.D.C. 2015) .......................................................................................7, 8, 9
`
`Friends of Park v. Nat’l Park Serv.,
` No. 13-cv-03453-DCN, 2014 WL 6969680 (D.S.C. Dec. 9, 2014) ............................................9
`
`Limnia, Inc. v. U.S. Dep’t of Energy,
` 857 F.3d 379 (D.C. Cir. 2017) .....................................................................................................8
`
`Macktal v. Chao,
` 286 F.3d 822 (5th Cir. 2002) .......................................................................................................6
`
`Nat’l Res. Def. Council v. United States Dep’t of Interior,
` 275 F. Supp. 2d 1136 (C.D. Cal. 2002) ...............................................................................6, 7, 9
`
`N. Coast Rivers All. v. United States Dep’t of the Interior,
` No. 11-CV-00307-LJO-MJS, 2016 WL 8673038 (E.D. Cal. Dec. 16, 2016) .....................6, 7, 8
`
`Ohio Valley Envtl. Coal. v. Aracoma Coal Co.,
` 556 F.3d 177 (4th Cir. 2009) .......................................................................................................8
`
`SKF USA Inc. v. United States,
` 254 F.3d 1022 (Fed. Cir. 2001) ............................................................................................6, 7, 8
`
`State v. Bureau of Land Mgmt.,
` No. 18-CV-00521-HSG, 2020 WL 1492708 (N.D. Cal. Mar. 27, 2020) ....................................6
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`Trujillo v. Gen. Elec. Co.,
` 621 F.2d 1084 (10th Cir. 1980) ...................................................................................................6
`
`Util. Solid Waste Activities Grp. v. EPA,
` 901 F.3d 414 (D.C. Cir. 2018) .....................................................................................................9
`
`United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc.,
` No. C-09-4029 EMC, 2011 WL 3607790 (N.D. Cal. Aug. 16, 2011) .....................................6, 7
`
`STATUTES
`
`33 U.S.C. § 1341 ..............................................................................................................................1
`
`CODE OF FEDERAL REGULATIONS
`
`40 C.F.R. § 121.5(b) .......................................................................................................................3
`
`40 C.F.R. § 121.5(c) ........................................................................................................................3
`
`FEDERAL REGISTER
`
`85 Fed. Reg. 42,210 (July 13, 2020) ................................................................................................1
`
`86 Fed. Reg. 7037 (Jan. 25, 2021), Executive Order 13,990 .....................................................1, 10
`
`86 Fed. Reg. 29,541 (June 2, 2021) ..........................................................................1, 2, 5, 7, 8, 10
`
`LOCAL RULES
`
`Civil L.R. 7-2 ..................................................................................................................................1
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`Case 3:20-cv-04636-WHA Document 143 Filed 07/01/21 Page 6 of 18
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`MEMORANDUM OF POINTS AND AUTHORITIES
`Pursuant to Civil L.R. 7-2 and this Court’s Order of June 21, 2021 (Dkt. No. 142),
`Defendants, the United States Environmental Protection Agency and Michael S. Regan, in his
`official capacity as the Administrator of the United States Environmental Protection Agency
`(collectively, “EPA”), by and through their counsel, respectfully request that the Court remand,
`without vacatur, EPA’s Section 401 Certification Rule that revised the implementing regulations
`for state certification of federal licenses and permits that may result in any discharge into waters
`of the United States pursuant to section 401 of the Clean Water Act (“CWA”), 33 U.S.C. § 1341.
`Remand is appropriate here because EPA has announced its intention to reconsider and revise the
`Certification Rule. Notice of Intention to Reconsider and Revise the Clean Water Act Section 401
`Certification Rule, 86 Fed. Reg. 29,541 (June 2, 2021) (“Notice”). EPA has “determined that it
`will reconsider and propose revisions to the rule through a new rulemaking effort.” Declaration
`of John Goodin ¶ 9 (“Goodin Decl.”). “EPA seeks to revise the rule in a manner that promotes
`efficiency and certainty in the certification process, that is well-informed by stakeholder input on
`the rule’s substantive and procedural components, and that is consistent with the cooperative
`federalism principles central to section 401.” Id. ¶ 13.
`Defendants have conferred with the parties regarding this motion. Plaintiffs plan to
`oppose this motion. Defendant-Intervenors do not object to the motion based on counsel for
`Defendants’ description, but reserve the right to file a response if they think one is necessary,
`after seeing the motion. Dkt. No. 141.
`
`BACKGROUND
`On July 13, 2020, EPA’s final rule, Clean Water Act Section 401 Certification Rule, was
`published. 85 Fed. Reg. 42,210 (the “Certification Rule” or the “Rule”). The Certification Rule
`became effective on September 11, 2020. On January 20, 2021, President Biden issued
`Executive Order 13,990, Protecting Public Health and the Environment and Restoring Science to
`Tackle the Climate Crisis. 86 Fed. Reg. 7037 (Jan. 25, 2021). Executive Order 13,990 stated that
`it is the policy of the new administration:
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`to listen to the science; to improve public health and protect our environment; to
`ensure access to clean air and water; to limit exposure to dangerous chemicals and
`pesticides; to hold polluters accountable, including those who disproportionately
`harm communities of color and low-income communities; to reduce greenhouse
`gas emissions; to bolster resilience to the impacts of climate change; to restore and
`expand our national
`treasures and monuments; and
`to prioritize both
`environmental justice and the creation of the well-paying union jobs necessary to
`deliver on these goals.
`
`Id. at 7037. Executive Order 13,990 directs federal agencies to “immediately review and, as
`appropriate and consistent with applicable law, take action to address the promulgation of
`Federal regulations and other actions during the last 4 years that conflict with these important
`national objectives, and to immediately commence work to confront the climate crisis.” Id. The
`Certification Rule was specifically listed in a subsequent White House Statement as one of the
`agency actions to be reviewed pursuant to the Executive Order for potential suspension, revision
`or rescission.1
`Plaintiffs allege that EPA violated the Administrative Procedure Act because the
`Certification Rule is in excess of statutory jurisdiction, authority, or limitations, or short of
`statutory right, arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with
`law. Dkt. No. 75 (“Am. Rivers Compl.”) ¶¶ 95, 99-101, 108, 115-18, 124-15, 132, 137 (citing 5
`U.S.C. §§ 706(2)(A), 706(2)(C)); Dkt. No. 96 (“States’ Compl.”) ¶¶ 7.5, 7.12, 7.19, 7.25 (same);
`Dkt. No. 98 (“Suquamish Compl.”) ¶¶ 79-81, 85, 89 (same).
`EPA has completed its initial review of the Certification Rule and determined that it will
`undertake a new rulemaking effort to propose revisions due to substantial concerns with the
`existing Rule. Notice, 86 Fed. Reg. 29,541 (June 2, 2021). As explained in the Notice and
`Goodin Declaration, EPA is reconsidering numerous topics in the Certification Rule. 86 Fed.
`Reg. at 29,542-44; Goodin Decl. ¶ 15. The specific topics that EPA has committed to
`reconsidering as part of that process include:
`
`
`1 Fact Sheet: List of Agency Actions for Review, available at
`https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-
`ofagency-actions-for-review/ (last accessed on May 20, 2021).
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`
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`
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`
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`the utility of the pre-filing meeting process to date, including whether the pre-filing
`meeting request component of the Rule has improved or increased early stakeholder
`engagement, whether the minimum 30 day timeframe should be shortened in certain
`instances (e.g., where a certifying authority declines to hold a pre-filing meeting), and
`how certifying authorities have approached pre-filing meeting requests and meetings
`to date;
`the sufficiency of the elements described in 40 C.F.R. § 121.5(b) and (c), and whether
`stakeholders have experienced any process improvements or deficiencies by having a
`single defined list of required certification request components applicable to all
`certification actions;
`the process for determining and modifying the “reasonable period of time,” including
`whether additional factors should be considered by federal agencies when setting the
`“reasonable period of time,” whether other stakeholders besides federal agencies have
`a role in defining and extending the reasonable period of time, and any
`implementation challenges or improvements identified through application of the
`Rule’s requirements for the “reasonable period of time”;
`the Rule’s interpretation of the scope of certification and certification conditions, and
`the definition of “water quality requirements” as it relates to the statutory phrase
`“other appropriate requirements of State law,” including whether the Agency should
`revise its interpretation of scope to include potential impacts to water quality not only
`from the “discharge” but also from the “activity as a whole” consistent with Supreme
`Court case law, whether the Agency should revise its interpretation of “other
`appropriate requirements of State law,” and whether the Agency should revise its
`interpretation of scope of certification based on implementation challenges or
`improvements identified through the application of the newly defined scope of
`certification;
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`the certification action process steps, including whether there is any utility in
`requiring specific components and information for certifications with conditions and
`denials; whether it is appropriate for federal agencies to review certifying authority
`actions for consistency with procedural requirements or any other purpose, and if so,
`whether there should be greater certifying authority engagement in the federal agency
`review process including an opportunity to respond to and cure any deficiencies;
`whether federal agencies should be able to deem a certification or conditions as
`“waived,” and whether, and under what circumstances, federal agencies may reject
`state conditions;
` enforcement of CWA Section 401, including the roles of federal agencies and
`certifying authorities in enforcing certification conditions; whether the statutory
`language in CWA Section 401 supports certifying authority enforcement of
`certification conditions under federal law; whether the CWA citizen suit provision
`applies to Section 401; and the Rule’s interpretation of a certifying authority’s
`inspection opportunities;
` modifications and “reopeners,” including whether the statutory language in CWA
`Section 401 supports modification of certifications or “reopeners,” the utility of
`modifications (e.g., specific circumstances that may warrant modifications or
`“reopeners”), and whether there are alternate solutions to the issues that could be
`addressed by certification modifications or “reopeners” that can be accomplished
`through the federal licensing or permitting process;
`the neighboring jurisdiction process, including whether the Agency should elaborate
`in regulatory text or preamble on considerations informing its analysis under CWA
`Section 401(a)(2), whether the Agency’s decision to make a determination under
`CWA Section 401(a)(2) is wholly discretionary, and whether the Agency should
`provide further guidance on the Section 401(a)(2) process that occurs after EPA
`makes a “may affect” determination;
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`
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` application of the Certification Rule, including impacts of the Rule on processing
`certification requests, impacts of the Rule on certification decisions, and whether any
`major projects are anticipated in the next few years that could benefit from or be
`encumbered by the Certification Rule’s procedural requirements;
` existing state CWA Section 401 procedures, including whether the Agency should
`consider the extent to which any revised rule might conflict with existing state CWA
`Section 401 procedures and place a burden on those states to revise rules in the
`future; and
`facilitating implementation of any rule revisions, including whether, given the
`relationship between federal provisions and state processes for water quality
`certification, EPA should consider specific implementation timeframes or effective
`dates to allow for adoption and integration of water quality provisions at the state
`level, and whether concomitant regulatory changes should be proposed and finalized
`simultaneously by relevant federal agencies (e.g., the United States Army Corps of
`Engineers and the Federal Energy Regulatory Commission) so that implementation of
`revised water quality certification provisions would be more effectively coordinated
`and would avoid circumstances where regulations could be interpreted as inconsistent
`with one another.
`86 Fed. Reg. at 29,542-44; Goodin Decl. ¶ 15. EPA is conducting initial stakeholder outreach by
`taking written input through a public docket that will be open until August 2, 2021, i.e., 60 days
`after publication of the Notice in the Federal Register. 86 Fed. Reg. at 29,541. After considering
`public input and information provided during stakeholder meetings, EPA will draft new
`regulatory language and supporting documents and submit the draft rule to the Office of
`Management and Budget (“OMB”). Goodin Decl. ¶¶ 20-22. EPA expects the proposed rule
`detailing revisions to the Certification Rule will be published in the Federal Register in Spring
`2022, which will initiate a public comment period. Id. ¶ 23. Following the public comment
`period on the proposed rule, EPA plans to review comments and other input, develop the final
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`rule, and submit it to OMB for interagency review. Id. ¶¶ 24-26. EPA expects to sign a final rule
`in spring 2023. Id. ¶ 27.
`STANDARD OF REVIEW FOR VOLUNTARY REMAND
`“[A]n agency may reconsider its own regulations, ‘since the power to decide in the first
`instance carries with it the power to reconsider.’” State v. Bureau of Land Mgmt., No. 18-CV-
`00521-HSG, 2020 WL 1492708, at *8 n.9 (N.D. Cal. Mar. 27, 2020) (quoting Nat’l Res. Def.
`Council, Inc. v. United States Dep’t of Interior, 275 F. Supp. 2d 1136, 1141 (C.D. Cal. 2002)
`(quoting Trujillo v. Gen. Elec. Co., 621 F.2d 1084, 1086 (10th Cir. 1980)); accord Macktal v.
`Chao, 286 F.3d 822, 825-26 (5th Cir. 2002) (stating that “it is generally accepted that in the
`absence of a specific statutory limitation, an administrative agency has the inherent authority to
`reconsider its decisions”).
`“A federal agency may request remand in order to reconsider its initial action.” Cal.
`Communities Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012). The Ninth Circuit has
`recognized that “[g]enerally, courts only refuse voluntarily requested remand when the agency’s
`request is frivolous or made in bad faith.” Id. (citing SKF USA Inc. v. United States, 254 F.3d
`1022, 1029 (Fed. Cir. 2001) (“SKF USA”). An “agency may request a remand (without
`confessing error) in order to reconsider its previous position . . . “ United States v. Gonzales &
`Gonzales Bonds & Ins. Agency, Inc., No. C-09-4029 EMC, 2011 WL 3607790, at *3 (N.D. Cal.
`Aug. 16, 2011); see also N. Coast Rivers All. v. United States Dep’t of the Interior, No. 11-CV-
`00307-LJO-MJS, 2016 WL 8673038, at *3 (E.D. Cal. Dec. 16, 2016) (noting that courts in the
`Ninth Circuit “generally look to the Federal Circuit’s decision in SKF USA for guidance when
`reviewing requests for voluntary remand” and quoting SKF USA, 254 F.3d at 1027-28).
`ARGUMENT
`When determining whether to grant a motion for voluntary remand, courts consider
`whether: (1) the request for voluntary remand is made in good faith and “reflects substantial and
`legitimate concerns,” Gonzales & Gonzales Bonds & Ins. Agency, Inc., 2011 WL 3607790, at *4
`(citing SKF, 254 F.3d at 1029); (2) remand supports “judicial economy,” Nat. Res. Def. Council
`
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`v. United States Dep’t of Interior, 275 F. Supp. 2d at 1141; and (3) voluntary remand would not
`cause “undue prejudice” to the parties, FBME Bank Ltd. v. Lew, 142 F. Supp. 3d 70, 73 (D.D.C.
`2015). Here, the balance of all three factors weighs in favor of remand.
`First, voluntary remand is appropriate because EPA has identified “substantial and
`legitimate concerns” with the Certification Rule and has publicly announced its intention to
`reconsider and revise the Rule. SKF, 254 F.3d at 1029 (“[I]f the agency’s concern [with the
`challenged action] is substantial and legitimate, a remand is usually appropriate.”); N. Coast
`Rivers All., 2016 WL 8673038, at *3 (same); Gonzales & Gonzales Bonds & Ins. Agency, Inc.,
`2011 WL 3607790, at *4 (same). Specifically, EPA has identified “substantial concerns with a
`number of provisions of the 401 Certification Rule that relate to cooperative federalism
`principles and CWA section 401’s goal of ensuring that states are empowered to protect their
`water quality.” 86 Fed. Reg. at 29,542. EPA also has serious concerns about whether the
`Certification Rule “constrains what states and Tribes can require in certification requests,
`potentially limiting state and tribal ability to get information they may need before the 401
`review process begins.” Id. at 29,543. Likewise, EPA “is concerned that the rule does not allow
`state and tribal authorities a sufficient role in setting the timeline for reviewing certification
`requests and limits the factors that federal agencies may use to determine the reasonable period
`of time.” Id. EPA is also “concerned that the rule’s narrow scope of certification and conditions
`may prevent state and tribal authorities from adequately protecting their water quality.” Id. And
`EPA “is concerned that a federal agency’s review may result in a state or tribe’s certification or
`conditions being permanently waived as a result of non-substantive and easily fixed procedural
`concerns identified by the federal agency [and] that the rule’s prohibition of modifications may
`limit the flexibility of certifications and permits to adapt to changing circumstances.” Id. These
`concerns mirror many of Plaintiffs’ allegations.2
`
`
`2 See Am. Rivers Compl. ¶¶ 94, 98, 107, 112-14, 123, 130-31, 136; States’ Compl. ¶¶ 1.9-1.13,
`5.43-5.46, 5.48-5.50, 5.54-5.61; Suquamish Compl. ¶¶ 62-76.
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`Courts have granted remand in similar situations. For example, in SKF USA, the Federal
`Circuit found a remand to the Department of Commerce appropriate in light of the agency’s
`change in policy. 254 F.3d at 1025, 1030. Likewise, in FBME Bank Ltd. v. Lew, the District
`Court for the District of Columbia remanded a rulemaking to the Department of the Treasury to
`allow the agency to address “serious ‘procedural concerns’” with the rule, including “potential
`inadequacies in the notice-and-comment process as well as [the agency’s] seeming failure to
`consider significant, obvious, and viable alternatives.” 142 F. Supp. 3d at 73.
`A confession of error is not necessary for voluntary remand so long as the agency is
`committed to reconsidering its decision. SKF USA, 254 F.3d at 1029. For example, remand may
`be appropriate if an agency “wishe[s] to consider further the governing statute, or the procedures
`that were followed,” or if an agency has “doubts about the correctness of its decision or that
`decision’s relationship to the agency’s other policies.” Id.; see also Limnia, Inc. v. U.S. Dep’t of
`Energy, 857 F.3d 379, 387 (D.C. Cir. 2017) (an agency does not need to “confess error or
`impropriety in order to obtain a voluntary remand” so long as it has “profess[ed] [an] intention to
`reconsider, re-review, or modify the original agency decision that is the subject of the legal
`challenge”); N. Coast Rivers All., 2016 WL 11372492, at *2 (explaining that an “agency may
`request a remand (without confessing error) in order to reconsider its previous position”)
`(emphasis in original) (quoting SKF USA, 254 F.3d at 1029). That standard is met here, as EPA
`has made clear that it intends to reconsider and revise the Certification Rule to address
`“substantial concerns” associated with the Rule. 86 Fed. Reg. at 29,542; Goodin Decl. ¶ 14.
`Along with receiving public input through a docket, EPA has held a series of webinar-based
`listening sessions to solicit stakeholder feedback on potential approaches to revise the
`Certification Rule. Notice, 86 Fed. Reg. at 29,544; Goodin Decl. ¶ 17.
`In sum, “an agency must be allowed to assess ‘the wisdom of its policy on a continuing
`basis.’” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 215 (4th Cir. 2009)
`(citation omitted). EPA’s actions are consistent with that principle, and this Court “should permit
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`Case 3:20-cv-04636-WHA Document 143 Filed 07/01/21 Page 14 of 18
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`such a remand in the absence of apparent or clearly articulated countervailing reasons.” Citizens
`Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 416 (6th Cir. 2004).
`Second, granting remand here is in the interest of judicial economy. “Remand has the
`benefit of allowing ‘agencies to cure their own mistakes rather than wasting the courts’ and the
`parties’ resources reviewing a record that both sides acknowledge to be incorrect or
`incomplete.’” Util. Solid Waste Activities Grp. v. EPA, 901 F.3d 414, 436 (D.C. Cir. 2018)
`(quoting Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993)); see Nat. Res. Def.
`Council v. United States Dep’t of Interior, 275 F. Supp. 2d at 1141 (“Voluntary remand also
`promotes judicial economy by allowing the relevant agency to reconsider and rectify an
`erroneous decision without further expenditure of judicial resources.”). Here, allowing EPA to
`reconsider its decision made during the prior Administration—including the legal basis and
`policy effects of the Rule—and address its substantial concerns with the Rule through the
`administrative process will preserve this Court’s and the parties’ resources. See FBME Bank,
`142 F. Supp. 3d at 74; see also B.J. Alan Co. v. ICC, 897 F.2d 561, 562 n.1 (D.C. Cir. 1990)
`(“[A]dministrative reconsideration is a more expeditious and efficient means of achieving an
`adjustment of agency policy than is resort to the federal courts.” (quoting Pennsylvania v. ICC,
`590 F.2d 1187, 1194 (D.C. Cir. 1978))). Continuing to litigate the very same issues that EPA is
`currently reconsidering and “would be inefficient,” FBME Bank, 142 F. Supp. 3d at 74, and a
`waste of “scarce judicial resources,” Friends of Park v. Nat’l Park Serv., No. 13-cv-03453-DCN,
`2014 WL 6969680, at *2 (D.S.C. Dec. 9, 2014).
`In addition, continuing to litigate this case would interfere with EPA’s ongoing
`reconsideration process by forcing the Agency to structure its administrative process around
`pending litigation, rather than the Agency’s priorities and expertise. See Am. Forest Res. Council
`v. Ashe, 946 F. Supp. 2d 1, 43 (D.D.C. 2013) (noting that because agency did “not wish to
`defend” action, “forcing it to litigate the merits would needlessly waste not only the agency’s
`resources but also time that could instead be spent correcting the rule’s deficiencies”), aff’d, 601
`F. App’x 1 (D.C. Cir. 2015).
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`Third, any prejudice Plaintiffs may suffer due to a remand without vacatur would be
`limited here because EPA has committed to reconsidering the Certification Rule to ensure that
`Clean Water Act Section 401 is implemented in a manner consistent with the policies set forth in
`Executive Order 13,990, many of which implicate the same concerns that Plaintiffs have raised
`in this litigation. See 86 Fed. Reg. at 7037. As noted above, EPA is considering revising
`provisions in the Certification Rule related to many of the issues raised in this case:
`
` pre-filing meeting requests, Notice, 86 Fed. Reg. at 29,543;
` certification requests, 86 Fed. Reg. at 29,543;3
`
`reasonable period of time, 86 Fed. Reg. at 29,543;4
` scope of certification, 86 Fed. Reg. at 29,543;5
` certification actions and federal agency review, 86 Fed. Reg. at 29,543;6
` certifying authority enforcement of certification conditions, 86 Fed. Reg. at 29,543;
`and
` certifying authority modification of certifications, 86 Fed. Reg. at 29,543.
`Moreover, EPA has committed to ensuring that stakeholders and the public, including Plaintiff
`States, Defendant-Intervenor States, Plaintiff Tribes and Industry Defendant-Intervenors, have
`the opportunity to provide input to EPA in its reconsideration process. 86 Fed. Reg. at 29,544;
`Goodin Decl. ¶¶ 17, 18, 23.
`A new rulemaking process will necessarily take time, but Plaintiffs cannot demonstrate
`undue prejudice from the time required under the Administrative Procedure Act to revise agency
`regulations. Nor have Plaintiffs identified harms that outweigh the benefits of remand here. The
`Plaintiff States allege that the Certification Rule “forces the States either to incur the financial
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`3 See Am. Rivers Compl. ¶¶ 39, 71, 100; States’ Compl. ¶¶ 5.54-5.58.
`4 See Am. Rivers Compl. ¶¶ 19, 25, 28, 99-102; States’ Compl. ¶¶ 6.11-6.13, 6.17; Suquamish
`Compl. ¶¶ 62, 70.
`5 See Am. Rivers Compl. ¶¶ 19, 36, 39, 94, 115-18; States’ Compl. ¶¶ 6.4, 6.16-6.17; Suquamish
`Compl. ¶¶ 37, 62-68, 75, 80, 84.
`6 See Am. Rivers Compl. ¶¶ 130-32; States’ Compl. ¶¶ 1.11, 7.4, 7.11-7.12; Suquamish Compl.
`¶¶ 69-76, 80.
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`Case 3:20-cv-04636-WHA Document 143 Filed 07/01/21 Page

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