ADMINISTRATIVE LAW; ENVIRONMENTAL LAW
United States Court of Appeals, 9th Circuit (2023)
Katie Raya
In In re Clean Water Act Rulemaking, 60 F.4th 583 (9th Cir. 2023), the 9th Circuit held that courts may not vacate agency actions in conjunction with granting requests for voluntary remands without first holding the agency action unlawful. (Id. at 588). The case involved challenges to the Clean Water Act (CWA) and its Section 401 certification process, where applicants needed state certification for potential discharges. (Id. at 588–89). The Environmental Protection Agency (EPA) had long-standing regulations for the process until it introduced the Clean Water Act Section 401 Certification Rule (2020 Rule) in July 2020, altering the process and limiting state authority. (Id. at 589). Plaintiffs contested the rule’s compliance with the CWA, resulting in several legal proceedings. (Id. at 590). After President Biden’s election, the EPA sought to review the rule, leading the district court to grant a stay and vacate the 2020 Rule. (Id.). Defendants appealed, arguing the court exceeded its authority under the Administrative Procedure Act by vacating the action without first deeming it unlawful. (Id.). Plaintiffs and the EPA first argued that the court lacked jurisdiction to even consider appeal because the district court’s decision was not a final appealable order, which the court dismissed by concluding that district court’s order terminated the only dispute between the parties. (Id. at 591). Subsequently, the plaintiffs argued that the APA’s judicial-review section doesn’t apply to voluntary remands, emphasizing the significance of granting such remands to prevent potential harm. (Id. at 595). The court disagreed, arguing that the plaintiffs’ policy concerns were misplaced, and that the APA’s text is best read as authorizing a court to vacate an agency action only when that court has first held that action unlawful. (Id. at 595–96). Thus, having jurisdiction to review the district court’s remand order, the 9th Circuit held that courts may not vacate agency actions in conjunction with granting requests for voluntary remands without first holding the agency actions unlawful. (Id. at 596).
