Case 2:20-cv-03412-MMB Document 74 Filed 08/06/21 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`DELAWARE RIVERKEEPER
`NETWORK, et al.
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`v.
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`CIVIL ACTION
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`NO. 20-3412
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`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY, et al.
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`MEMORANDUM RE REMAND
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`Baylson, J.
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` August 6, 2021
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`I.
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`Introduction
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`In this case brought by an environmental organization against the United States
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`Environmental Protection Agency (EPA) regarding an environmental regulation, Defendants have
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`filed a Motion to Remand without vacatur arguing that the agency should have the opportunity to
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`review and revise the regulation on its own. For the reasons stated below, Defendants’ Motion to
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`Remand without vacatur will be granted. Defendant Intervenors Motion to Strike will be denied.
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`II.
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`Facts and Procedural History
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`Plaintiffs are the Delaware Riverkeeper Network (DRN), an environmental and community
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`organization and Maya Van Rossum, the leader of DRN. Defendants are the EPA and Michael
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`Regan, the new EPA Administrator, who has been substituted for Andrew Wheeler as a Defendant.
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`Plaintiffs brought this case seeking the rescission of the “Certification Rule” promulgated during
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`the Trump Administration. The Certification Rule concerns the process for permitting activities
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`that may affect water quality. This Court previously denied Defendants’ Motion to Dismiss based
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`on standing. On January 20, 2021, President Biden issued Executive Order 13,990, Protecting
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`Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. 86 Fed.
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`Case 2:20-cv-03412-MMB Document 74 Filed 08/06/21 Page 2 of 7
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`Reg. 7037 (Jan. 25, 2021). Executive Order 13,990 stated that it is the policy of the new
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`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.
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`Id. at 7037. This Executive Order directs federal agencies to “immediately review and, as
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`appropriate and consistent with applicable law, take action to address the promulgation of Federal
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`regulations and other actions during the last 4 years that conflict with these important national
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`objectives, and to immediately commence work to confront the climate crisis.” Id. The Biden
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`Administration has specifically stated that the Certification Rule is a regulation which it intends to
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`review for potential revision or rescission. In response to the Administration announcing its
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`intentions to review the Rule, the parties agreed to hold the case in abeyance to provide the EPA
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`more time to determine a course of action. ECF 57, 61, 64. At this point, the EPA has completed
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`its initial review of the Certification Rule and determined that it will undertake a new rulemaking
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`effort to propose revisions due to substantial concerns with the existing Rule. The EPA expects a
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`proposed rule detailing revisions to the Certification Rule will be published in the Federal Register
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`in Spring 2022. Following the public comment period on the proposed rule, EPA plans to review
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`comments and other input, develop the final rule, and submit it to OMB for interagency review,
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`with a final rule in Spring 2023.
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`Defendants filed the present Motion to Remand without vacatur on July 1, 2021 (ECF 67).
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`Plaintiffs responded on July 22, 2021, arguing that the Court should remand with vacatur, or in the
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`alternative, that the case should proceed (ECF 68). Defendant Intervenors filed a Joint Motion to
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`Strike on August 4, 2021, seeking to strike the Plaintiffs response to the extent it seeks remand
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`with vacatur (ECF 70). Defendants filed a Reply in support of their Motion (ECF 71), and
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`Plaintiffs filed a response to Defendant Intervenors Motion to Strike on August 5, 2021 (ECF 72).
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`III. Legal Standard
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`An “agency may request a remand (without confessing error) in order to reconsider its
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`previous position.” SKF USA, Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). “[T]he
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`reviewing court has discretion over whether to remand.” Id. Courts “generally grant an agency’s
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`motion to remand so long as the agency intends to take further action with respect to the original
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`agency decision on review” because it “has the benefit of allowing agencies to cure their own
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`mistakes rather than wasting the courts’ and the parties’ resources.” Util. Solid Waste Activities
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`Grp. v. EPA, 901 F.3d 414, 436 (D.C. Cir. 2018).
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`The decision to vacate the Rule or leave it in place while the agency reconsiders its decision
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`is also a matter within the Court’s discretion. Checkosky v. SEC, 23 F.3d 452, 465 (D.C. Cir.
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`1994). The Third Circuit, as well as this Court, has cited the D.C. Circuit’s Allied-Signal test when
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`considering whether vacatur is appropriate. See Prometheus Radio Proj. v. Fed. Comm. Comm’n,
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`824 F.3d 33, 52 (3d Cir. 2016); Comite de Apoyo a los Trabajadores Agricolas v. Solis, 933 F.
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`Supp. 2d 700, 713–16 (E.D. Pa. 2013). Under that test, “[t]he decision whether to vacate depends
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`on the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency
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`chose correctly) and the disruptive consequences of an interim change that may itself be changed.”
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`Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993).
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`In Allied-Signal, the D.C. Circuit found that “[a]n inadequately supported rule . . . need not
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`necessarily be vacated.” Id. at 150. In that case, the deficiencies were the failure of the agency to
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`adequately state its reasoning, and thus not “serious” because the agency, on remand, might be
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`able to easily provide the necessary explanation. Id. at 151. In addition, the consequences of an
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`interim rule change would have been extremely disruptive as it would have required the agency to
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`refund all the fees that had been collected under the rule at issue. Id.
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`In SKF USA Inc. v. United States, the D.C. Circuit reviewed five general circumstances in
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`which an agency action is review by the Courts. 254 F.3d 1022, 1028–29 (Fed. Cir. 2001). In its
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`discussion of the circumstance most relevant here, the D.C. Circuit stated:
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`[T]he agency may request a remand because it believes that its
`original decision is incorrect on the merits and wishes to change the
`result. That is the present situation. Remand to an agency is
`generally appropriate to correct simple errors, such as clerical errors,
`transcription errors, or erroneous calculations. The more complex
`question, however, involves a voluntary remand request associated
`with a change in agency policy or interpretation. If there is a step
`one Chevron issue - that is, an issue as to whether the agency is
`either compelled or forbidden by the governing statute to reach a
`different result - a reviewing court again has considerable discretion.
`It may decide the statutory issue, or it may order a remand. For
`example, in Steele v. FCC, No. 84-1176 (D.C. Cir. Oct. 31, 1985)
`(en banc), as described in Lamprecht v. FCC, 294 U.S. App. D.C.
`164, 958 F.2d 382, 385 (D.C. Cir. 1992), the Court of Appeals for
`the District of Columbia Circuit granted the FCC’s motion to
`remand when the FCC admitted that its decision was contrary to the
`Communications Act and the Constitution. Although a court need
`not necessarily grant such a remand request, remand may conserve
`judicial resources, or the agency’s views on the statutory question,
`though not dispositive, may be useful to the reviewing court.
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`Where there is no step one Chevron issue, we believe a remand to
`the agency is required, absent the most unusual circumstances
`verging on bad faith. Under Chevron, agencies are entitled to
`formulate policy and make rules “to fill any gap left, implicitly or
`explicitly, by Congress.” Chevron, 467 U.S. at 843 (quoting Morton
`v. Ruiz, 415 U.S. 199, 231 (1974)). Furthermore, an agency must be
`allowed to assess “the wisdom of its policy on a continuing basis.”
`Id. at 864. Under the Chevron regime, agency discretion to
`reconsider policies does not end once the agency action is appealed.
`See Auer v. Robbins, 519 U.S. 452, 462-63 (1997) (deferring to
`agency’s interpretation of its own regulation advanced in litigation).
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`Id. at 1029 (citations omitted).
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`IV.
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`Parties’ Arguments
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`The EPA argues first that remand without vacatur is appropriate because the EPA has
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`publicly announced its intention to reconsider and revise the Rule. It argues that where there is no
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`showing of bad faith, the Court should allow the agency to revise the Rule on its own, relying on
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`SKF USA. It also argues that remand without vacatur conserves the parties and the Court’s
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`resources by resolving the current litigation and would not prejudice Plaintiffs who will have the
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`opportunity to participate in the rule making process. It argues that allowing the Rule to remain
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`in place in the process is not undue prejudice to Plaintiffs because going through the rulemaking
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`process is the best way to promote stability under the APA. The EPA states it is committed to
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`providing assistance to stakeholders and working with agency partners to address Plaintiff’s
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`concerns in the interim.
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`Plaintiffs seek remand with vacatur, or in the alternative, for the case to proceed on the
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`merits. Plaintiffs argue that vacatur is appropriate because the Rule has serious deficiencies and
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`would not be disruptive. Plaintiffs also argue that they would be prejudiced by allowing the Rule
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`to remain in place because they will have to continue to suffer the harms alleged under the Rule
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`for at least two years for the new Final Rule is promulgated. They contend that Defendants cannot
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`argue that the harms are too speculative, as this Court struck down such arguments in its opinion
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`on standing.
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`V.
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`Discussion
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`To begin, the Court finds that remand to the EPA is appropriate here, where the agency has
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`indicated its clear intent to revise the Rule on its own. It would not serve interests of judicial
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`economy to continue a case regarding a Rule that will likely no longer be law once the agency
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`makes its revisions. Thus, the key question here is whether vacatur of the Rule is appropriate.
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`The discussion of remand in SKF USA is most relevant here, as it discusses a situation in
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`which the agency seeks to revise a decision based on its belief that the substance of its prior
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`decision was incorrect, as opposed to a procedural or clerical issue. SKF USA does not concern a
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`Rule but the calculation of a tax by the Department of Commerce. Therefore, the opinion does not
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`discuss vacatur specifically. However, under the principles described by the D.C. Circuit in this
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`case, allowing the agency to use its discretion to revise the Rule here would be appropriate.
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`This case is somewhat distinct from the other cases which discuss vacatur specifically. In
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`Comite de Apoyo a los Trabajadores Agricolas v. Solis, the Court laid out the usual circumstances
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`in which remand is sought:
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`The practical effect of remand without vacatur is that an invalid rule
`remains in place while an agency works to correct its errors. This
`approach is often sensible where an agency promulgates a
`substantively valid rule through an invalid process and the agency
`will likely promulgate the same rule through a proper process on
`remand. Nonetheless, remand without vacatur is far less logical
`where, as here, a court finds that a rule directly contradicts an
`agency’s authority and the agency expresses no intention of timely
`correcting its error. In such circumstances, to leave an invalid rule
`in place is for a reviewing court to legally sanction an agency’s
`disregard of its statutory or regulatory mandate.
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`933 F. Supp. 2d 700, 714 (E.D. Pa 2013) (Davis, J.). The present situation does not fit into either
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`of these circumstances. The Rule is not being remanded based on an invalid process, and it has
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`also not been found to be invalid at this stage in the case. The parties have also not pointed to
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`other specific consequences of vacatur. As the Court has not yet, and will not, make a finding on
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`the substantive validity of the Certification Rule, the principles discussed in SKF-USA support a
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`remand without vacatur.
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`VI. Motion to Strike
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`There are several intervenors in this case: the States of Arkansas, Louisiana, Mississippi,
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`Missouri, Montana, Texas, West Virginia, and Wyoming, American Petroleum Institute, Interstate
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`Natural Gas Association of America, and National Hydropower Association. The intervenors have
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`filed a collective Motion to Strike the Plaintiffs’ Response to the extent that Plaintiffs request
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`remand with vacatur.
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`Intervenor Defendants argue that Plaintiffs request that the Court remand without vacatur
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`is procedurally improper because it seeks affirmative relief through a response, as opposed to filing
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`a Motion as required. Intervenor Defendants argue that by filing a response seeking affirmative
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`relief and making arguments which go to the validity of the Rule, they have deprived the Intervenor
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`Defendants of the opportunity to oppose their Motion and make arguments in response. Plaintiffs
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`argue that their response does not seek affirmative relief and is an appropriate response to the
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`Motion by Defendants. Plaintiffs also point out that the Intervenor Defendants were aware of
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`Plaintiffs intention to oppose Defendants’ Motion for Remand without vacatur and had the
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`opportunity to file a brief in support.
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`The Court will deny Defendant Intervenors Motion to Strike because they had the
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`opportunity to present arguments in support of Defendants Motion and/or in opposition to
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`Plaintiffs and chose not to. There is no basis for striking Plaintiffs’ Response.
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`VII. Conclusion
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`For the reasons stated above, the EPA’s Motion to Remand without vacatur is granted.
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`Defendant Intervenors Motion to Strike is denied. An appropriate Order follows.
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`O:\CIVIL 20\20-3412 Del Riverkeeper v EPA\20cv3412 Memorandum Re Remand.docx
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