Waterkeeper Alliance, Inc. v. Wheeler

Background

This case was one of several lawsuits challenging rules issued by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers defining “waters of the United States” under the Clean Water Act. The defendants requested voluntary remand, meaning that the case would be returned to the agencies for further consideration, and dismissal of the case.

The plaintiffs opposed remand unless the existing rule was vacated. The court said that issue appeared moot because the court in a related case had already vacated the rule on August 13, 2021.

Court’s analysis

The court stated that, even if it had needed to decide whether vacatur was appropriate, it would not have required the defendants to acknowledge that the rule contained a legal error. The defendants did not concede that the rule was legally impermissible. The court also noted that, in another case, it had concluded that the plaintiffs were unlikely to succeed in proving that error. Instead, the defendants appeared to be reconsidering the rule for policy reasons. The court explained that the agencies had discretion to change their policies and regulatory approaches, but that reconsideration did not include a merits evaluation or a concession supporting vacatur.

Intervenors Chantell and Michael Sackett opposed remand concerning a provision about “adjacent wetlands.” They argued that the agencies would not have discretion to eliminate or substantially revise that provision on remand. The court rejected that argument, explaining that the Ninth Circuit had recently rejected the Sacketts’ position that a four-justice plurality opinion in Rapanos v. United States controlled. The Ninth Circuit had instead said that Justice Kennedy’s concurrence remained the controlling opinion from Rapanos.

Ruling

Judge Richard Seeborg granted the motion to remand. The court ordered the clerk to close the file. The opinion does not separately state that the defendants’ request for dismissal was granted.