Federal agencies are increasingly requesting voluntary remands of challenged rules, thereby circumventing judicial review, and avoiding ever having to defend the merits of those rules. Courts routinely grant these extraordinary requests, often under the guise of saving judicial resources and giving agencies a second chance to reconsider. But voluntary remands come at a steep cost, particularly in the arena of environmental litigation. There, voluntary remands not only deprive litigants of their day in court, but can also subject them (and the broader public) to unlawful and inadequate rules that are causing serious environmental harm.
Courts have long guarded against the inequitable consequences of voluntary remands by simultaneously vacating the challenged rules, even prior to a conclusive determination on the merits. That remedy—also known as pre-merits vacatur—falls well within the court’s broad equitable authority. It has, however, come under assault in recent years, particularly from industry groups who rarely profit from the court’s equitable discretion. So too, the Biden Administration has questioned the court’s ability to vacate Trump-era environmental regulations on voluntary remand, thereby prolonging those rules’ adverse environmental impacts. Some legal commentators have assumed, with little or no analysis, that court’s lack the authority to order pre-merits vacatur.
This article sets the record straight and provides a complete defense of the court’s authority to order pre-merits vacatur as a condition of voluntary remand. The article also refutes misplaced attempts to strip courts of that remedial power, which provides a crucial backstop against agencies’ increasing use of voluntary remands. Finally, the article provides a compelling policy justification for remanding and vacating insufficiently protective environmental rules, as demonstrated by two recent cases that vacated and remanded Trump-era rules that eliminated long-standing Clean Water Act protections. In both cases, pre-merits vacatur provided an efficient, equitable, and environmentally sound remedy
Recommended CitationStuart Gillespie, Pre-Merits Vacatur: An Efficient, Equitable, and Environmentally Sound Remedy, 39 Pace Envtl. L. Rev. 96 (2022)
Available at: https://digitalcommons.pace.edu/pelr/vol39/iss1/5