ELR Citation: 53 ELR 20030
No(s). 21-16958 (9th Cir. Feb 21, 2023)

The Ninth Circuit reversed a district court's order granting voluntary remand and vacating EPA's 2020 CWA Section 401 Certification Rule. States, environmental groups, and tribes challenged the rule, arguing it unlawfully restricted states' and tribes' ability to reject water pollution projects. Before litigation reached the summary judgment stage, a new president was elected, and EPA announced its intent to revise the rule and moved to remand to reconsider it. The district court granted EPA's motion, and granted plaintiffs' request to vacate the rule. The U.S. Supreme Court granted an emergency stay of the vacatur, leaving the rule in effect. The appellate court subsequently held that courts may not vacate agency actions in conjunction with granting requests for voluntary remands without first holding those actions unlawful, and thus that the district court lacked authority to vacate the 2020 rule without first holding it unlawful. It reversed the district court's order in its entirety and sent the suit back on open record for reconsideration of EPA's remand motion.