Gulf Restoration Network et al v. Environmental Protection Agency et al
Filing
66
ORDER AND REASONS: IT IS ORDERED that Defendant's 46 Motion for Voluntary Remand Without Vacatur is Granted in Part, and this matter is hereby REMANDED to the agency for further proceedings consistent with this order. IT IS FURTHER ORDERED th at the remand is made subject to a PARTIAL VACATUR, vacating the new DO standard except in connection with the one permit in which it has been incorporated, and maintaining the new water body boundaries, pending reconsideration on remand; IT IS FURTHER ORDERED that plaintiff's 47 Motion for Partial Summary Judgment is Denied as Moot. Signed by Judge Mary Ann Vial Lemmon on 2/25/2019. (ajn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GULF RESTORATION NETWORK,
ET AL
CIVIL ACTION
VERSUS
NO: 18-1632
U.S. ENVIRONMENTAL
PROTECTION AGENCY, ET AL
SECTION: "S" (5)
ORDER AND REASONS
IT IS HEREBY ORDERED that defendants' Motion for Voluntary Remand Without
Vacatur (Rec. Doc. 46) is granted in part;
IT IS FURTHER ORDERED that plaintiff's Motion for Partial Summary Judgment
(Rec. Doc. 47) is denied as moot.
Before the court are two motions, defendants' Motion for Voluntary Remand Without
Vacatur, and Plaintiff's Motion for Partial Summary Judgment. Having reviewed the record, the
memoranda of counsel, and applicable law, the court finds that the parties are in agreement that
remand is inevitable; the only question is whether the remand should be voluntary as requested
by defendants, or subsequent to a finding that EPA is violation of section 7(a)(2) of the
Endangered Species Act, 16 U.S.C. § 1536(a)(2), as requested by plaintiffs, and whether the
remand should be with or without vacatur.
A more detailed recitation of background facts has been set forth by the court in its prior
Order and Reasons (Rec. Doc.33), and is incorporated by reference. For purposes of the instant
motions, the crucial fact is that the parties actually differ on very little: the EPA acknowledges
that is in violation of section 7(a)(2) of the Endangered Species Act ("ESA"), and that remand
and reconsideration at the agency level is necessary. In support of their motion, EPA submitted
the affidavit of Louisiana Department of Environmental Quality ("LDEQ") Secretary Chuck Carr
Brown, who has averred that the lowered dissolved oxygen "DO" standard challenged by
plaintiffs is currently incorporated in one Lousiana Pollutant Discharge Elimination System
permit, and that if the matter is remanded, the LDEQ would forego incorporating the lowered
DO standard into any further permits during the remand period. Thus, in essence, the EPA has
consented to a partial vacatur. Moreover, plaintiffs do not appear to take issue with the new subsegment boundaries, except to the extent they incorporate the lowered DO standard, suggesting
that not vacating the new sub-segment boundaries is acceptable to them.
Absent a specific statutory limitation, an administrative agency has the inherent authority
to reconsider its decisions. Macktal v. Chao, 286 F.3d 822, 825–26 (5th Cir. 2002); see also,
Frito-Lay, Inc. v. U.S. Dep't of Labor, 20 F. Supp. 3d 548, 552 (N.D. Tex. 2014). Even in the
absence of new evidence or an intervening event . . . courts retain the discretion to remand an
agency decision when an agency has raised “substantial and legitimate” concerns in support of
remand. Carpenters Indus. Council v. Salazar, 734 F. Supp. 2d 126, 132 (D.D.C. 2010). Granting
voluntary remand in such cases preserves scarce judicial resources by allowing agencies “to cure
their own mistakes.” Id. (citing Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D. C. Cir.1993).
Considering that they have acknowledged that they failed to follow the requirements of
section 702(a), the court finds that defendants have raised substantial and legitimate concerns in
support of remand. As for vacatur, because (with the exception of the DO standard related to one
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permit) there is essential agreement between the parties, a partial vacatur is appropriate.
Accordingly,
IT IS ORDERED that defendants' Motion for Voluntary Remand Without Vacatur (Rec.
Doc. 46) is granted in part, and this matter is hereby REMANDED to the agency for further
proceedings consistent with this order.
IT IS FURTHER ORDERED that the remand is made subject to a PARTIAL
VACATUR, vacating the new DO standard except in connection with the one permit in which it
has been incorporated, and maintaining the new water body boundaries, pending reconsideration
on remand;
IT IS FURTHER ORDERED that plaintiff's Motion for Partial Summary Judgment
(Rec. Doc. 47) is denied as moot.
25th
New Orleans, Louisiana, this _____ day of February, 2019.
____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE
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