In Re: American Rivers v. American Petroleum Institute

Under 9th Circuit precedent, permanent equitable remedies can only be awarded against illegal executive action. Likewise, the APA’s text is best read as authorizing a court to vacate an agency action only when that court first held that action unlawful.

Plaintiffs challenged two provisions of the Clean Water Act (“CWA”) Section 401 Certification Rule (“2020 Rule”) in district court, arguing that the provisions were inconsistent with the CWA. Plaintiffs sought an order to vacate the 2020 Rule. The Environmental Protection Agency (“EPA”) moved for a remand of the 2020 Rule to revise it. The district court granted both the EPA’s remand motion and Plaintiffs’ request to vacate the 2020 Rule.

On appeal, Plaintiffs argued that, if voluntary remands before merit determinations exist, then the authority to vacate a challenged rule must also exist. The Court rejected Plaintiffs’ argument because precedent directs that permanent equitable remedies, such as vacatur, may only be awarded against illegal executive action. Additionally, the Court considered the text of the Administrative Procedure Act (“APA”). The Court held that the text of the APA only authorizes a court to vacate an agency action when that court has first held that action unlawful. The Court concluded that the district court did not have authority to vacate agency actions while also granting requests for voluntary remands without first making merits determination. REVERSED and REMANDED.