United States Sugar Corp v. EPA

Filing

OPINION [1652742] filed PER CURIAM OPINION (Pages: 4) by Circuit Judges Henderson, Brown, and Griffith. [11-1108, 11-1124, 11-1134, 11-1142, 11-1145, 11-1159, 11-1165, 11-1172, 11-1174, 11-1181, 13-1086, 13-1087, 13-1091, 13-1092, 13-1096, 13-1097, 13-1098, 13-1099, 13-1100, 13-1103]

USCA Case #11-1108

Document #1652742

Filed: 12/23/2016

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided December 23, 2016
No. 11-1108
UNITED STATES SUGAR CORPORATION,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
AMERICAN CHEMISTRY COUNCIL, ET AL.,
INTERVENORS

Consolidated with 11-1124, 11-1134, 11-1142, 11-1145,
11-1159, 11-1165, 11-1172, 11-1174, 11-1181, 13-1086,
13-1087, 13-1091, 13-1092, 13-1096, 13-1097, 13-1098,
13-1099, 13-1100, 13-1103

On Petition of the United States Environmental Protection
Agency for Panel Rehearing as to Remedy

Before: HENDERSON, BROWN, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed PER CURIAM.

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PER CURIAM: Among the many challenges to the EPA’s
Major Boilers Rule1 in these consolidated cases, we granted
the petition brought by the Environmental Petitioners to
review the EPA’s decision to exclude certain sources from its
calculation of Maximum Achievable Control Technology
(MACT) emissions standards for major-boiler subcategories,
and vacated any standards that had been “affected” by the
flawed calculation. U.S. Sugar Corp. v. EPA, 830 F.3d 579,
632 (D.C. Cir. 2016).
On September 12, 2016, the EPA filed a petition for a
panel rehearing asking that the major-boiler standards be
“remanded to [the] EPA without vacatur for the Agency to
conduct rulemaking to determine which standards are
‘affected’ and to modify them in accordance with the Court’s
opinion.” EPA Pet. Reh’g 1. All relevant parties in this matter
support the EPA’s request. Joint Resp. Industry Pet’rs 3;
Envtl. Pet’rs’ Resp. 1.
Although remand without vacatur may in some
circumstances invite prejudicial agency delay, see, e.g., In re
Core Commc’ns, Inc., 531 F.3d 849, 862-63 (D.C. Cir. 2008)
(Griffith, J., concurring), in other circumstances vacatur itself
carries more-harmful consequences. We have therefore
frequently remanded without vacating when a rule’s defects
are curable and “where vacatur ‘would at least temporarily
defeat . . . the enhanced protection of the environmental
values covered by [the EPA rule at issue].’” North Carolina v.
1

National Emission Standards for Hazardous Air Pollutants
for Major Sources: Industrial, Commercial, and Institutional Boilers
and Process Heaters, 76 Fed. Reg. 15,608 (Mar. 21, 2011), as
amended, National Emission Standards for Hazardous Air
Pollutants for Major Sources: Industrial, Commercial, and
Institutional Boilers and Process Heaters, 78 Fed. Reg. 7,138 (Jan.
31, 2013).

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EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008) (per curiam)
(alterations in original) (quoting Envtl. Def. Fund, Inc. v.
EPA, 898 F.2d 183, 190 (D.C. Cir. 1990)); see also Natural
Res. Def. Council v. EPA, 489 F.3d 1250, 1265 (D.C. Cir.
2007) (“Where the court has concluded that a final rule is
deficient, the court has traditionally not vacated the rule if
doing so would have serious adverse implications for public
health and the environment.”). Vacating the standards at issue
here would unnecessarily remove many limitations on
emissions of hazardous air pollutants from boilers and allow
greater emissions of those pollutants until EPA completes
another rulemaking and implements replacement standards.
See EPA Pet. Reh’g 6.
In light of our precedent and the parties’ agreement that
this case presents one of the circumstances in which remand
without vacatur makes the most sense, we remand without
vacating the numeric MACT standards set in the Major
Boilers Rule for new and existing sources in each of the
eighteen subcategories.2 On remand, the EPA is to identify
those standards for which the MACT floor would have
differed if the EPA had included all best-performing sources
in each subcategory in its MACT-floor analysis. The EPA
must then revise those standards consistent with our July 29,
2016 opinion in this case.
Although the Industry Petitioners stress the importance of
the EPA expeditiously completing the rulemaking, we have
not been asked to impose a deadline by which the EPA must
act. Even so, we expect the EPA to complete this rulemaking
promptly. We also “remind the Petitioners that they may bring
a mandamus petition to this court in the event that [the] EPA
fails to” revise its standards on remand “in a manner
2

Because the parties agree as to the appropriate remedy, a
formal rehearing is unnecessary.

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consistent with our” earlier opinion. North Carolina, 550 F.3d
at 1178 (citing Natural Res. Def. Council, 489 F.3d at 1264
(Randolph, J., concurring)).
So ordered.

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