`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`STATE OF CALIFORNIA, by and
`through Attorney General Xavier
`Becerra and the California Air
`Resources Board; STATE OF
`ILLINOIS; STATE OF MARYLAND;
`STATE OF NEW MEXICO; STATE OF
`OREGON; COMMONWEALTH OF
`PENNSYLVANIA; STATE OF RHODE
`ISLAND; STATE OF VERMONT,
`Plaintiffs-Appellees,
`
` No. 19-17480
`
`D.C. No.
`4:18-cv-03237-
`HSG
`
`
`OPINION
`
`
`ENVIRONMENTAL DEFENSE FUND,
`Intervenor-Plaintiff-Appellee,
`
`
`
`v.
`
`
`U.S. ENVIRONMENTAL PROTECTION
`AGENCY; ANDREW WHEELER, Acting
`Administrator of the U.S.
`Environmental Protection Agency,
`Defendants-Appellants,
`
`
`
`and
`
`
`E. SCOTT PRUITT, Administrator,
`U.S. EPA,
`
`Defendant.
`
`
`
`
`2
`
`
`STATE OF CALIFORNIA V. USEPA
`
`Appeal from the United States District Court
`for the Northern District of California
`Haywood S. Gilliam, Jr., District Judge, Presiding
`
`Argued and Submitted July 17, 2020
`San Francisco, California
`
`Filed October 22, 2020
`
`Before: Eugene E. Siler,* Kenneth K. Lee, and
`Patrick J. Bumatay, Circuit Judges.
`
`Opinion by Judge Bumatay
`
`
`SUMMARY**
`
`Environmental Law
`
`
`
`
`The panel reversed the district court’s decision to deny a
`
`Fed. R. Civ. P. 60(b) motion to modify an injunction which
`required
`the U.S. Environmental Protection Agency
`(“EPA”) to promulgate its federal landfill emissions plan by
`November 6, 2019.
`
`Several States sued to force the EPA to promulgate its
`
`federal plan. Subsequent to the district court’s May 6, 2019
`injunction order, the EPA promulgated new regulations
`
`* The Honorable Eugene E. Siler, United States Circuit Judge for the
`U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
`3
`
`STATE OF CALIFORNIA V. USEPA
`
`
`
`moving the EPA’s deadline for promulgating a federal plan
`to August 30, 2021. Faced with the dueling deadlines of the
`district court’s injunction requiring a plan by November 6,
`2019, and the new regulations establishing August 30, 2021
`as the deadline, the EPA filed its Rule 60(b) motion
`requesting relief from the district court’s injunction.
`
`The panel held that the district court abused its discretion
`
`in denying the EPA’s request for relief under Fed. R. Civ. P.
`60(b)(5) because EPA’s new regulations constituted a
`change in law, and removed the legal basis for the court’s
`deadline. A shift in the legal landscape that removed the
`basis for an order warranted modification of the injunction.
`The panel rejected the States’ contention that courts must
`look beyond the new regulations and conduct a broad, fact-
`specific
`inquiry
`into whether modification prevented
`inequity. The panel remanded with instruction for the
`district court to modify the injunction consistent with this
`opinion.
`
`
`
`COUNSEL
`
`
`Joan M. Pepin (argued), David Gunter, and Leslie M. Hill,
`Attorneys; Eric Grant, Deputy Assistant Attorney General;
`Jeffrey Bossert Clark, Assistant Attorney General;
`Environment and Natural Resources Division, United States
`Department of Justice, Washington, D.C.; Matthew C.
`Marks and Karen J. Palmer, Attorneys, EPA Office of
`General Counsel, Washington, D.C.; for Defendants-
`Appellants.
`
`Elizabeth B. Rumsey (argued) and Julia K. Forgie, Deputy
`Attorneys General; Gary Tavetian and David A. Zonana,
`Supervising Deputy Attorneys General; Robert Byrne and
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`4
`
`Sally Magnani, Senior Assistant Attorneys General; Xavier
`Becerra, Attorney General; Office of the Attorney General,
`Oakland, California; Kwame Raoul, Attorney General;
`Daniel I. Rottenberg, Assistant Attorney General; Attorney
`General’s Office, Chicago, Illinois; Brian E. Frosh, Attorney
`General; Leah J. Tulin, Assistant Attorney General;
`Attorney General’s Office, Baltimore, Maryland; Hector
`Balderas, Attorney General; Bill Grantham, Assistant
`Attorney General; Office of
`the Attorney General,
`Albuquerque, New Mexico; Ellen F. Rosenblum, Attorney
`General; Paul Garrahan, Attorney-Charge, Natural
`Resources Division; Oregon Department of Justice; Salem,
`Oregon; Josh Shapiro, Attorney General; Michael J. Fischer,
`Chief Deputy Attorney General; Robert A. Reiley, Assistant
`Director, Department of Environment Protection; Office of
`the Attorney General, Harrisburg, Pennsylvania; Thomas J.
`Donovan Jr., Attorney General; Nicholas F. Persampieri,
`Assistant Attorney General; Office of the Attorney General;
`Montpelier, Vermont; for Plaintiffs-Appellees.
`
`Susannah Weaver (argued) and Matthew Littleton, Donahue
`Goldberg Weaver & Littleton, Washington, D.C.; Peter
`Zalzal and Rachel Fullmer, Environmental Defense Fund,
`Boulder, Colorado; for Intervenor-Plaintiff-Appellee.
`
`
`
`
`
`
`
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`5
`
`OPINION
`
`BUMATAY, Circuit Judge:
`
`On one level this case is about trash. When we toss our
`food packaging, the core of an apple, or almost any other
`material, our garbage winds up in one place: municipal solid-
`waste landfills. Over a thousand of these landfills are littered
`across the country to store and process household waste.
`Responsibility for regulating such landfills rests with the
`Environmental Protection Agency, in cooperation with
`states. This includes promulgating emissions guidelines—
`because gases like methane and carbon dioxide are produced
`as a byproduct of the waste-decomposition process—and
`issuing plans detailing how those guidelines will be
`implemented.
`
`EPA promulgated new landfill emissions guidelines in
`2016. Doing so set off a series of mandates for states and
`EPA. First, each state was required to submit a plan on how
`it would implement the new guidelines. Second, EPA was
`to approve or disapprove each state plan it received. Finally,
`for states that failed to submit a plan at all, EPA had to
`promulgate a federal plan that would govern implementation
`in those states. The deadline for EPA to comply with its final
`requirement—issuing
`the
`federal plan—was set by
`regulation for November 30, 2017. But EPA blew this
`deadline.
`
`Several states sued to force EPA to promulgate its
`federal plan. While EPA responded to the suit, it also kicked
`off the rulemaking process to extend its regulatory deadline
`for issuing a federal plan. While this rulemaking was
`underway, the district court ruled for the plaintiff states and
`entered an injunction requiring EPA to promulgate the plan
`within six months. A few months later, EPA finalized the
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`6
`
`rulemaking process, which extended its regulatory deadline
`by two years.
`
`At this point, EPA faced two conflicting deadlines:
`November 2019 under the court’s order and August 2021
`under the amended regulations. EPA asked the district court
`to modify the injunction, but it declined to do so. Instead,
`the district court found the prior injunction “pose[d] no
`obstacle” to EPA and that, in spite of the new regulations,
`“all other circumstances indicate that enforcement of the
`judgment is still equitable.” California v. EPA, No. 18-cv-
`3237-HSG, 2019 WL 5722571, at *3–4 (N.D. Cal. Nov. 5,
`2019).
`
`So, this case is not just about trash, landfills, or emissions
`guidelines; it’s also about the separation of powers and the
`limits of a court’s equitable discretion. We’re asked to
`decide whether a district court abuses its discretion by
`refusing to modify an injunction even after its legal basis has
`evaporated and new law permits what was previously
`enjoined. We answer affirmatively and reverse.
`
`I.
`
`EPA is empowered to regulate “new” and “existing”
`sources of pollution under the Clean Air Act. See 42 U.S.C.
`§§ 7410, 7411. For any “new” sources, EPA shoulders
`primary regulatory responsibility. See id. § 7411(b), (c).
`But regulation of “existing” sources is a joint enterprise
`between EPA and the states. See id. § 7411(d)(1).
`
`From 1975 until 2019, EPA regulations for existing
`sources of pollution required a series of actions upon the
`issuance of any new emissions guidelines. Under these
`regulations, states were given nine months to submit an
`implementation plan after EPA publishes new emissions
`
`
`
`7
`
`STATE OF CALIFORNIA V. USEPA
`
`
`
`guidelines. 40 C.F.R. § 60.23(a)(1). Within four months of
`that deadline, EPA had to approve or disapprove of the plan.
`Id. § 60.27(b). If a state failed to submit a plan of its own,
`EPA had to issue a federal plan that would govern. Id.
`§ 60.27(d). EPA had six months from the state-submission
`deadline to do so. Id.
`
`Our case concerns the emissions guidelines, and required
`implementation plans, for municipal solid-waste landfills.
`In 1996, EPA established emissions guidelines for such
`landfills, requiring the installation of control technology if
`they emitted more than 50 megagrams of certain air
`pollutants in a year. 61 Fed. Reg. 9905, 9907 (Mar. 12,
`1996). EPA amended those guidelines in 2016 to lower the
`emissions threshold from 50 to 34 megagrams annually.
`81 Fed. Reg. 59,276, 59,278 (Aug. 29, 2016).
`
`This amendment triggered the regulatory timeline for
`action discussed above. See 40 C.F.R. § 60.30f(a) (2016).
`First, each state was required to submit a plan by May 30,
`2017. Id. § 60.30f(b). Second, EPA was required to approve
`or disapprove of such plans by September 30, 2017. 81 Fed.
`Reg. at 59,304. Finally, EPA was required to promulgate a
`federal plan by November 30, 2017. Id.
`
`its deadlines: September 30th and
`EPA missed
`November 30th came and went, but EPA failed to approve
`any state plan or issue a federal plan. In May 2018, several
`states brought suit alleging that EPA violated its own
`regulations and sought an injunction compelling the agency
`to promulgate a federal plan.1
`
`
`1 The plaintiffs are California, Illinois, Maryland, New Mexico,
`Oregon, Pennsylvania, and Vermont, as well as the California Air
`
`
`
`
`8
`
`
`STATE OF CALIFORNIA V. USEPA
`
`Five months later, in October 2018, EPA began a
`rulemaking process to amend the timing regulations at the
`heart of the States’ suit. EPA’s stated goal was to bring its
`regulatory deadlines for existing-source pollution in line
`with statutory timelines for new-source pollution under
`42 U.S.C. § 7410. 84 Fed. Reg. 32,520, 32,564 (July 8,
`2019). EPA then moved for a stay of the litigation pending
`resolution of the rulemaking process. The district court
`refused to stay the litigation. As the case went on, EPA made
`an additional attempt to continue the case, in light of the
`government shutdown at the time, but its motion was denied.
`
`At the end of the day, the States prevailed. On May 6,
`2019, the district court entered an injunction requiring EPA
`to approve or disapprove of state plans by September 6,
`2019. (EPA has already complied with this part of the
`court’s injunction, so it is not at issue here.) The district
`court also required EPA to issue a federal plan by November
`6, 2019.
`
`About two months after the district court’s order, EPA
`completed the rulemaking process, and the new timing
`regulations were promulgated. 84 Fed. Reg. 32,520. Under
`the new regulations, (1) states have three years after EPA
`promulgates new emission guidelines
`to submit an
`implementation plan, 40 C.F.R. § 60.23a(a)(1); (2) EPA
`must take action to approve or disapprove of a state plan
`within a year, id. § 60.27a(b); and (3) EPA must issue any
`federal plan within two years, id. § 60.27a(c). On August
`26, 2019, EPA finalized a regulatory amendment that made
`the new timing regulations applicable to the 2016 emissions
`guidelines. See 84 Fed. Reg. 44,547. Between these two
`
`Resources Board and Plaintiff-Intervenor Environmental Defense Fund
`(collectively, the “States”).
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`
`
`regulations, EPA’s deadline to promulgate a federal plan
`was pushed out to August 30, 2021.
`
`9
`
`EPA then confronted dueling deadlines: comply with the
`district court’s injunction requiring a plan by November 6,
`2019, or follow the new law establishing August 30, 2021,
`as the deadline.2 To resolve this dilemma, EPA filed a
`motion under Federal Rule of Civil Procedure 60(b)(5)
`requesting relief from the district court’s injunction. The
`district court denied the motion but temporarily stayed its
`injunction. EPA brought the appeal now before us and
`moved for a stay of the district court’s injunction pending
`appeal, which was granted by a motions panel.
`
`We review “for an abuse of discretion the district court’s
`decision to deny a Rule 60(b) motion, and review de novo
`any questions of law underlying the decision to deny the
`motion.” Deocampo v. Potts, 836 F.3d 1134, 1140 (9th Cir.
`2016).
`
`II.
`
`Although a court’s order is ordinarily final, the Federal
`Rules of Civil Procedure provide some exceptions. Rule
`60(b) enumerates when a party may obtain relief from a
`court’s judgment or order. As relevant here, a court “may”
`
`2 The new regulations are currently being challenged before the D.C.
`Circuit. See New York v. EPA, No. 19-1165 (D.C. Cir.); Appalachian
`Mountain Club v. EPA, No. 19-1166 (D.C. Cir.); Environmental Defense
`Fund v. EPA, No. 19-1222 (D.C. Cir.); California v. EPA, 19-1227 (D.C.
`Cir.). But no party has moved to stay the new regulations pending the
`D.C. Circuit’s review, so they are undisputedly in effect. Given this
`procedural posture, we assume, without deciding, that the new
`regulations were duly promulgated so as to properly effectuate a change
`in the law. We leave it to our colleagues on the D.C. Circuit to decide if
`that’s actually true.
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`10
`
`modify an injunction when “applying it prospectively is no
`longer equitable.” Fed. R. Civ. P. 60(b)(5).
`
`If this sounds like a pliable standard, that’s because it is.
`But this flexibility is a virtue, not a vice. Historically, what
`made courts of equity different was that they could be
`“flexible” and “adjust their decrees, so as to meet most, if
`not all” of the exigencies to do justice for the parties. See
`Joseph Story, W. H. Commentaries on Equity Jurisprudence
`as Administered in England and America, Vol. 1 26–27
`(C.C. Little & J. Brown eds., 1846). Such courts could
`“vary, qualify, restrain, and model the remedy, so as to suit
`to mutual and adverse claims, controlling equities, and the
`real and substantial rights of all the parties.” Id. at 27.
`Indeed, equity exists “[b]ecause it is impossible that any
`code, however minute and particular, should embrace or
`provide for the infinite variety of human affairs, or should
`furnish rules applicable to all of them[.]” Smith v. Davis,
`953 F.3d 582, 590 (9th Cir. 2020) (en banc) (simplified).
`
`Rule 60(b)(5), and its malleable standard for modifying
`an injunction, preserves the courts’ historical discretion over
`injunctions. See Bellevue Manor Assocs. v. United States,
`165 F.3d 1249, 1252 (9th Cir. 1999) (“[T]he Rule codifies
`the courts’ traditional authority, inherent in the jurisdiction
`of the chancery, to modify or vacate the prospective effect
`of their decrees.”) (simplified). But judicial discretion—
`historically and now—is not unbridled. See 1 William
`Blackstone, Commentaries on the Laws of England *62
`(“[T]he liberty of considering all cases in an equitable light
`must not be indulged too far, lest thereby we destroy all law,
`and leave the decision of every question entirely in the breast
`of the judge.”); Sys. Fed’n No. 91, Ry. Emps.’ Dep’t, v.
`Wright, 364 U.S. 642, 648 (1961) (“Railway Employees”)
`(“[D]iscretion is never without limits and these limits are
`
`
`
`11
`
`STATE OF CALIFORNIA V. USEPA
`
`
`
`often far clearer to the reviewing court when the new
`circumstances involve a change in law rather than facts.”).
`American equity jurisprudence, thus, reflected an “effort to
`restrain the discretion courts of equity once wielded and to
`roundly reject a view in which equity depends on the length
`of each chancellor’s foot.” Smith, 953 F.3d at 604 (Berzon,
`J., dissenting) (simplified).
`
`EPA argues here that the district court abused its
`discretion by forcing the agency to comply with the
`injunction, despite the regulations having been amended to
`extend the time to issue a federal plan to August 2021. The
`States respond that courts must look beyond the new
`regulations and conduct a broad, fact-specific inquiry into
`whether modification prevents
`inequity.
` They seek
`affirmance since EPA hasn’t shown that it would be harmed
`if forced to continue to abide by the court’s injunction. We
`hold that the district court’s refusal to modify the injunction
`here, when a change in law dissolved the legal basis for its
`order, is an abuse of discretion.
`
`A.
`
`1.
`
`An unbroken line of Supreme Court cases makes clear
`that it is an abuse of discretion to deny a modification of an
`injunction after the law underlying the order changes to
`permit what was previously forbidden. Consider first the
`decision in Pennsylvania v. Wheeling & Belmont Bridge Co.,
`59 U.S. 421 (1855) (“Wheeling Bridge”). The Court had
`ordered that an unlawful structure, a bridge, be destroyed
`and enjoined from being rebuilt. Id. at 423. Congress later
`established it as a postal route, thereby legalizing the bridge.
`Id. at 422, 426. As fate would have it, the bridge was
`destroyed in a storm, but the defendant still wanted it rebuilt.
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`12
`
`Accordingly, the defendant sought modification of the
`decree, which was granted. The Court explained, as a
`“continuing decree,” if the law “has been modified by the
`competent authority, so that the bridge is no longer an
`unlawful obstruction, it is quite plain the decree of the court
`cannot be enforced.” Id. at 431–32. For this conclusion, the
`Court relied solely on the fact that the new law permitted
`what was forbidden under the injunction—without engaging
`in any balancing of the harms to the parties.
`
`Nearly a century later, the Court reiterated that a change
`in law that alters a party’s legal duty requires modification
`of an injunction that is based on superseded law. Prior to
`1951, the Railway Labor Act prohibited union shops at
`railroad
`companies—meaning
`non-union
`employees
`couldn’t be coerced into joining a union at those companies.
`Railway Employees, 364 U.S. at 643–44. Based on that law,
`a railroad company, its unions, and its employees entered
`into a consent decree that prevented the company from
`treating non-union employees differently from union
`employees. Id. at 644. In 1951, Congress amended the Act
`to permit union shops. Id. In response to a modification
`request, the Court thought it “plain” that the decree should
`be lifted. Id. at 649. Had the order been an injunction, rather
`than a consent decree, the Court explained, “it would have
`been improvident for the court to continue in effect th[e]
`provision of the injunction prohibiting a union shop
`agreement.” Id. at 648. But as a consent decree, the analysis
`also required reviewing the law’s impact on the parties’
`expectations. Nonetheless, based on Wheeling Bridge, the
`Court expressly stated: “That it would be an abuse of
`discretion to deny a modification of the present injunction if
`it had not resulted from a consent decree we regard as
`established.” Id. at 650. Again, it reached this conclusion
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`
`
`based only on the amendment to the law, without regard for
`any other equitable factors.
`
`13
`
`Finally, Agostini v. Felton, 521 U.S. 203 (1997), points
`in the same direction. There, New York City was enjoined
`from sending public school teachers to parochial schools. Id.
`at 212. Twelve years later, the City sought relief from the
`injunction, arguing that Establishment Clause jurisprudence
`had shifted so significantly that the prior cases supporting
`the injunction were no longer good law. Id. at 208–09. The
`Court agreed and held—without any analysis of other
`equitable factors—that the City was entitled to relief from
`the prospective injunction. Id. at 215–17. It explained that
`“[a] court may recognize subsequent changes in either
`statutory or decisional law” giving rise to an injunction, and
`a “court errs when it refuses to modify an injunction or
`consent decree in light of such changes.” Id. at 215. Thus,
`Agostini confirms the equitable principle that when the law
`changes to permit what was previously forbidden, it is an
`abuse of discretion to not modify an injunction based on the
`old law.3
`
`We have likewise held that a shift in the legal landscape
`that removes the basis for an order warrants modification of
`an injunction. In California Department of Social Services
`v. Leavitt, we considered an injunction issued against two
`
`3 The States argue that Agostini did not just consider the
`jurisprudential shift, but instead conducted a more fact-specific analysis
`regarding the equitableness of modifying the injunction. It’s true that
`the Court balanced the equities, but it did so only in response to the
`dissent’s charge that the Court should have waited for a “better vehicle”
`to examine the continued vitality of its prior Establishment Clause case.
`See id. at 239–40; id. at 259 (Ginsburg, J., dissenting) (objecting to the
`majority’s “problematic use of Rule 60(b)” to announce the very change
`in the law that justified modification of the injunction).
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`14
`
`to comply with our
`them
`state agencies requiring
`interpretation of a federal aid program. 523 F.3d 1025, 1027
`(9th Cir. 2008). Congress later passed a law amending the
`statutory basis of that program, which made clear that our
`reading was wrong. Id. at 1029. The agencies then moved
`for relief from the injunction. Id. at 1030. We upheld the
`district court’s decision to modify the injunction because the
`new statute had “removed the legal basis for the continuing
`application of the court’s Order” and “[a] ‘change in law’ of
`[that] type ‘entitle[d] petitioners to relief under Rule
`60(b)(5).’” Id. at 1032 (quoting Agostini, 521 U.S. at 237).
`To reach this conclusion we followed the Court’s lead—we
`relied solely on the amended law without considering other
`equitable factors. Elsewhere, we’ve recognized as settled
`that “[w]hen a change in the law authorizes what had
`previously been forbidden, it is an abuse of discretion for a
`court to refuse to modify an injunction founded on
`superseded law.” Toussaint v. McCarthy, 801 F.2d 1080,
`1090 (9th Cir. 1986) (simplified).
`
`Other circuits have adopted similar approaches. See Am.
`Horse Prot. Ass’n, Inc. v. Watt, 694 F.2d 1310, 1316, 1318–
`19 (D.C. Cir. 1982) (holding that new law, by itself,
`warranted modification of an injunction); Williams v. Atkins
`786 F.2d 457, 463 (1st Cir. 1986) (holding modification is
`warranted when the “legal predicate for [a] consent decree
`has changed so substantially[,] that [the decree] is now
`without a foundation in current federal law and it in part
`conflicts with federal law”); Sweeton v. Brown, 27 F.3d
`1162, 1166–67 (6th Cir. 1994) (en banc) (reversing the
`district court and remanding with instructions to dissolve
`injunctions imposed by a consent decree based on a change
`in the law); Protectoseal Co. v. Barancik, 23 F.3d 1184,
`1187 (7th Cir. 1994) (lifting of injunction was “mandated”
`by Congress’s amendment to the Clayton Act). Once again,
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`
`
`in these cases, our sister circuits did not balance the harms
`caused by modifying an injunction—instead they viewed the
`revisions in the law as sufficient to require modification.4
`
`15
`
`2.
`
`The States contend that other precedent requires a broad,
`fact-intensive inquiry into whether altering an injunction is
`equitable, even if the legal duty underlying the injunction has
`disappeared. We disagree.
`
`The States first point to Rufo v. Inmates of Suffolk County
`Jail, 502 U.S. 367 (1992). While Rufo conducted this type of
`analysis, that case is easily distinguishable. Instead of an
`injunction, the Court was considering a consent decree,
`which is a contract-like judgment that turns on the parties’
`expectations. See id. at 378 (consent decrees reflect “an
`agreement of the parties and thus in some respects [are]
`contractual in nature”). Here, the injunction was not entered
`by consent, so there is no need to consider the parties’
`expectations in submitting to the district court’s order. Cf.
`id. at 389 (parties to a consent decree may “settle the dispute
`. . . by undertaking to do more than the Constitution itself
`requires” and “more than what a court would have ordered
`
`
`4 But see Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d
`645, 650 (1st Cir. 1972) (“[A] change in applicable law does not provide
`sufficient basis for relief under Rule 60(b)(5).”); De Filippis v. United
`States, 567 F.2d 341, 344 (7th Cir. 1977) (“The Kelley decision, even if
`applicable, was not by itself such a subsequent event as to render
`inequitable continued application of the injunction.”), overruled in part,
`United States v. City of Chicago, 663 F.2d 1354 (7th Cir. 1981) (en
`banc).
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`16
`
`absent the settlement”).5 Indeed, five years after Rufo, the
`Court in Agostini returned to an injunction and relied solely
`on a jurisprudential shift to hold that the district court abused
`its discretion in not modifying the order. 521 U.S. at 208.6
`
`Nor does Bellevue Manor compel a different conclusion.
`There, we considered whether a congressional amendment
`and Court decision discredited the legal basis of an
`injunction, but also went on to analyze additional factors that
`supported the district court’s decision to modify an
`injunction. See Bellevue Manor Assocs. v. United States,
`165 F.3d 1249, 1254 (9th Cir. 1999). But we did so because
`of the unusual procedural posture: We had previously
`remanded, in an unpublished disposition, for the district
`court to consider a variety of factors under a prior (and more
`stringent) test for modification. Id. at 1254. After the district
`court did so, and held that modification of the injunction was
`warranted, the case came back up on appeal. Out of respect
`
`5 The States correctly note that the Rufo analysis has been applied to
`injunctions as well as consent decrees. But these cases involved
`modification requests based on changed factual circumstances, not new
`law. See Horne v. Flores, 557 U.S. 433, 459, 462–63 (2009); SEC v.
`Coldicutt, 258 F.3d 939, 942 (9th Cir. 2001). Unsurprisingly,
`modifications requested based on a change in facts necessitate a broad,
`fact-intensive analysis. But this offers little guidance on a Rule 60(b)(5)
`motion based on superseding law, as is the case here.
`
`6 Nor do we find persuasive the States’ claim that various cases hold
`that the Rufo standard applies to “all” modification requests under Rule
`60(b)(5). The States rely on language yanked out of context. Our
`discussion about the Rufo analysis applying to “all” requests for
`modification simply refers to the fact that Rufo is not limited to
`“institutional reform litigation.” Bellevue Manor, 165 F.3d. at 1250,
`1255; see also United States v. W. Elec. Co., 46 F.3d 1198, 1203 (D.C.
`Cir. 1995) (same); In re Matter of Hendrix, 986 F.2d 195, 198 (7th Cir.
`1993) (same). Such language does not mean that courts must conduct
`the Rufo analysis in cases like this.
`
`
`
`17
`
`STATE OF CALIFORNIA V. USEPA
`
`
`
`for the district court’s efforts, we considered the more
`stringent factors—despite ultimately overruling the test—
`and concluded that they weighed in favor of modification.
`Id. Because other reasons supported the district court’s
`decision to grant modification, we dodged the question of
`whether the change in the law alone warranted dissolution of
`the injunction. Today we answer that question affirmatively.
`
`Finally, the States contend that the equities support their
`view since the injunction here “remedied a single, long-past
`legal violation by requiring one discrete task”—the issuance
`of the federal plan. In contrast, they argue, the cases cited
`above relate to continuing or ongoing injunctions. We see
`no legal basis to treat this injunction any differently than one
`that might be characterized as continuing, ongoing, or
`indefinite. Indeed, it is the prospective effect (rather than the
`continuing or ongoing nature) of an injunction that matters,
`and which renders the injunction amenable to modification
`based on new law. See, e.g., Landgraf v. USI Film Products,
`511 U.S. 244, 274 (1994) (“relief by injunction operates in
`futuro”); Wheeling Bridge, 59 U.S.
`at 431–32
`(distinguishing damages, which are immune from shifts in
`the law, from injunctions, which are subject to changes in
`the law); 11 Charles Alan Wright et al., Federal Practice and
`Procedure § 2863, (3d ed. 2020) (distinguishing between
`judgment with prospective effect and judgments “that offer
`a present remedy for a past wrong”); Maraziti v. Thorpe,
`52 F.3d 252, 254 (9th Cir. 1995) (holding that a judgment is
`“prospective” within the meaning of Rule 60(b)(5) where it
`is “executory”—e.g., compels a party to perform or restrains
`it from performing a future act) (citing Twelve John Does v.
`District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988)).
`
`Accordingly, the weight of authority confirms that, once
`the legal basis for an injunction has been removed, such that
`
`
`
`STATE OF CALIFORNIA V. USEPA
`
`18
`
`the law now permits what was previously forbidden, it is an
`abuse of discretion to not modify the injunction.
`
`3.
`
`This caselaw accords with our understandings of equity.
`As one leading commentator noted over 100 years ago, a
`“court of equity never grants an injunction on the notion that
`it will do no harm to the defendant if he does not intend to
`commit the act in question. An injunction will not issue
`unless some positive reasons are shown to call for it.”
`2 William Blackstone, Commentaries on the Laws of
`England and Additional Notes by Archibold, et al., *282
`n.13 (George Sharswood ed. 1893) (discussing when
`injunctions may issue to prevent “waste”). So, even if an
`injunction appears to “do no harm to the defendant,” it
`necessarily does so by its nature. Id. And, accordingly, we
`should require a “positive” basis for its imposition. Id.
`Although this commentator was discussing the need for a
`sufficient factual predicate to issue an injunction, we think
`the same reasoning requires an operative legal basis for
`imposing and maintaining an injunction.
`
`Compelling EPA, then, to continue to adhere to an
`injunction based on a legal duty that has since disappeared is
`a harm in and of itself. EPA is now under no legal duty—
`besides the court’s injunction—to promulgate a federal plan
`by the now-stayed November 2019 date. Because EPA’s
`new regulations have removed the legal basis for the court’s
`deadline, we hold it an abuse of discretion to deny EPA’s
`request for relief under Rule 60(b)(5).
`
`B.
`
`Both sides warn that a ruling for the other side will
`offend the Constitution’s separation of powers. We start
`
`
`
`19
`
`STATE OF CALIFORNIA V. USEPA
`
`
`
`with the principle that no political branch of government can
`reverse the final judgment of an Article III court. Because
`the “‘judicial Power’
`is one
`to render dispositive
`judgments,” Congress cannot retroactively reverse a final
`judgment. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219
`(1995). And if Congress can’t do it, an executive agency
`can’t either.
`
`But it is only final judgments, not injunctive relief, that
`cannot be disturbed without offending the separation of
`powers. See, e.g., id. at 226–27 (distinguishing retroactive
`application of a new law to cases while on appeal from
`judgments that have achieved “finality”). Cases involving
`new laws that “altered the prospective effect of injunctions
`entered by Article III courts,” such as Wheeling Bridge,
`“distinguish themselves” from Plaut. Id. at 232. Indeed, this
`distinction was made explicit five years later, when the Court
`held that, “[p]rospective relief under a continuing, executory
`decree remains subject to alteration due to changes in the
`underlying law” without raising a separation of powers
`concern. Miller v. French, 530 U.S. 327, 344, 347 (2000);
`see also Landgraf, 511 U.S. at 273–74 (“When the
`intervening statute aut