Pre-Merits Vacatur: An Efficient, Equitable, and Environmentally Sound Remedy

Abstract

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 Trumpera 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 * Stuart Gillespie is a senior attorney with Earthjustice, a non-profit environmental law firm. The opinions expressed in this article are his alone.