Last fall, in Marin Audubon Society v. Federal Aviation Administration, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the Council on Environmental Quality lacks statutory authority to issue binding regulations implementing and interpreting the National Environmental Policy Act.
Last month, the full court denied a petition for en banc review in the case, while a majority of judges on the court joined an opinion suggesting the above holding was merely dicta.
Today, the original panel granted a stay of the judgment in the case (having previously denied the petitioners request for remand without vacatur). Writing for the panel, Judge Randolph explained that in cases like this, in which the party challenging a government regulation for being too lax as oppose to too stringent, a stay may be justified so as not to leave the petitioner in worse condition than before filing suit. In such cases, Judge Randolph explained, equitable considerations may justify a stay without compromising the effect of the court’s conclusion that the agency action was unlawful.
Judge Srinivasan concurred separately “in the disposition” on the grounds that he would have granted remand without vacatur as an initial matter.
For myself, I prefer Judge Randolph’s approach. One reason for this is I do not understand how remand without vacatur is consistent with the instruction for courts to “set aside” unlawful agency actions. Whether or not one believes universal relief is appropriate, once a court concludes that an agency action is unlawful, the court should not be willing to enforce that action, either in the instant case or going forward.
In addition, remand without vacatur does not put much pressure on an agency to fix the problem. As a consequence, agencies often drag their feet to comply with such orders. While staying the mandate produces much the same outcome–a court judgment that the agency action was unlawful that does not take effect–a stay that can be lifted at the court’s discretion or that expires at a date certain does more to incentivize the agency to fix the problem. Indeed, if the primary justification for remand without vacatur is that courts should not enter judgements that are disruptive to the prevailing party, this is actually a stronger argument for Judge Randolph’s position than Judge Srinivasan’s.
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