ELR Citation: ELR 20173
No(s). 07-0795 (2d Cir. Jul 31, 2009)

The D.C. Circuit denied the federal government's motion to remand and vacate an OSM rule promulgated in December 2008 that regulates excess mining spoil, disposal of mine waste, stream buffer zones, and stream-channel diversions in connection with mountaintop and surface mining operations. An environmental group filed suit in January 2009 alleging that OSM violated several statutes in issuing the rule. In April 2009, the Secretary of the Interior sought to have the rule remanded and vacated after he determined that the OSM, under a previous Administration, erred in failing to initiate consultation with the FWS under the ESA to evaluate possible effects the rule might have on threatened and endangered species. But the court found no precedent to support the proposition that it should remand and vacate the rule under the circumstances presented here. The government seeks a remand and vacatur of the rule without a determination on the merits that it is legally deficient. Moreover, the APA requires government agencies to follow certain procedures, including providing for public notice and comment, before enacting or amending a rule. An agency must follow the same procedure in order to repeal a rule. While notice and comment procedure is not required where a court vacates a rule after making a finding on the merits, granting vacatur here would allow the government to do what they cannot do under the APA, repeal a rule without public notice and comment, without judicial consideration of the merits.