Featured Expert Contributor—Environmental Law and Policy

Jim Wedeking is Counsel to Sidley Austin LLP in the firm’s Washington, DC office. The opinions expressed are those of the author and do not necessarily reflect the views of Sidley Austin LLP or its clients.

In August 2021, the U.S. District Court for the District of Arizona issued a seemingly mundane decision that carried the potential to work tremendous mischief in the field of administrative law. Pasqua Yaqui Tribe v. U.S. Environmental Protection Agency (“EPA”)1 granted the Biden EPA’s request to remand the Trump-era Navigable Waters Protection Rule2 but vacated the rule at plaintiffs’ behest, invalidating a hotly contested Clean Water Act rulemaking before the parties finished summary judgment briefing and without a ruling on the merits.3 Relying on plaintiffs’ opening brief and EPA’s many “concerns” over the rule, the district court treated the motion to remand as a confession that the rule contained serious legal errors justifying vacatur.

As discussed in a prior Washington Legal Foundation Working Paper, the EPA and its co-defendant, the U.S. Army Corps of Engineers, embraced the Pasqua Yaqui decision instead of appealing it.4 As a result, the agencies’ feeble defense of the Navigable Waters Protection Rule allowed them to effectively rescind it without a new rulemaking.5 Given how frequently a new administration attempts to repeal or modify a prior administration’s rulemakings, the Pasqua Yaqui decision presented a tremendous administrative law shortcut. Instead of spending years promulgating new rulemakings to rescind the old, ensuring that they satisfy the legal requirements of both the underlying authorizing statutes and federal administrative law,6 and then defending them from legal challenges, an agency can simply acquiesce to judicial vacatur by essentially confessing error in a motion to remand.

The Ninth Circuit, however, appears to have quashed that strategy. In a consolidated set of challenges to a different Trump-era Clean Water Act rulemaking, the Clean Water Act Section 401 Certification Rule,7 the U.S. District Court for the Northern District of California faced a similar situation as in Pasqua Yaqui: EPA moved to remand without vacatur (taking care to disparage the rule’s legal rationale) while the plaintiffs demanded remand with vacatur.8 Although the district court showed more concern than the Pasqua Yaqui court about the legality and potential consequences of vacating a rule without deciding the merits,9 it still latched onto EPA’s criticisms of the rule to justify vacatur.10

Again, EPA declined to appeal, leaving the several states and industry groups that intervened to defend the rule to seek review in the Ninth Circuit.11 However, even obtaining review required the intervenors to overcome a significant procedural hurdle as it was generally understood that a court’s remand of an agency action was not an appealable final order.12Therefore, the intervenors scored a significant victory when the Ninth Circuit held that its past precedent on the question was distinguishable and limited to instances where the district court rules on the merits and remands an agency action for further consideration, but an appeal would still be available after agency review is completed.13

Once the Ninth Circuit found it had jurisdiction, it then took on the plaintiff-appellees’ argument that courts must necessarily have the power to vacate an allegedly unlawful rule as it would be unfair to allow the rule to continue in force during an agency’s post-remand consideration.14The Ninth Circuit, however, held that courts of equity only have the power to act against illegal actions, which necessarily requires a ruling on the merits before imposing any remedy.15 The APA does not alter a court’s traditional equitable powers. It only permits “courts to ‘set aside’ those actions ‘found to be,’ for example, ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”16 Thus, “the APA not only expressly explains when a court may set aside agency action (upon a holding of unlawfulness), it also implicitly explains when a court cannot (without a holding of unlawfulness).”17

The In re Clean Water Act Rulemaking opinion repairs the damage done by Pasqua Yaqui and the Northern District of California’s vacatur of the Section 401 Certification Rule. Although opponents of an administration’s rulemakings may yearn for the opportunity to quickly wipe them out wholesale when a different administration takes over, the current, relatively slow pace of formal rulemakings already sows significant confusion and uncertainty. Watching four or eight years’ worth of regulations upended by a new administration in a matter of months—all without new rulemakings, public comment, or the opportunity to challenge those reversals—would be even more jarring. And, importantly, by removing incentives for government agencies to collude with friendly challengers to sabotage their own rulemakings, the In re Clean Water Act Rulemaking decision will prevent the further appearance of purportedly neutral government agencies acting in a political manner.


  1. 557 F. Supp. 3d 949 (D. Ariz. 2021). The challenged rule was jointly promulgated by the Environmental Protection Agency and the U.S. Army Corps of Engineers.
  2. 557 F. Supp. 3d 949 (D. Ariz. 2021). The challenged rule was jointly promulgated by the Environmental Protection Agency and the U.S. Army Corps of Engineers.
  3. 557 F. Supp. 3d at 951.
  4. Jim Wedeking, Court’s Vacatur of Navigable Waters Rule Introduces New Level of Gamesmanship Into Administrative Law, Washington Legal Foundation Critical Legal Issues: Working Paper Series No. 222 (Sept. 2021).
  5. Id. at 7-8. Notably, the Trump EPA and industry intervenors had successfully defended the Navigable Waters Protection Rule from motions for a preliminary injunction, making EPA’s professed “concerns” about its legal viability suspicious, to say the least. Id. at 8, n. 31.
  6. See FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012) (explaining the standard for administrative agencies changing their prior regulations or policies).
  7. 85 Fed. Reg. 42,210 (July 13, 2020).
  8. In re Clean Water Act Rulemaking, 568 F. Supp. 3d 1013, 1020-21, 1025-27 (N.D. Cal. 2021).
  9. Id. at 1021-23.
  10. Id. at 1025-27.
  11. In the meantime, the Intervenor-Defendants successfully obtained a stay of the district court’s ruling from the Supreme Court. Louisiana v. Amer. Rivers, 142 S. Ct. 1347 (2022).
  12. In re: Clean Water Act Rulemaking, Case No. 21-16958, Slip Op. (Feb. 21, 2023) at 21-22 (discussing arguments by plaintiff-appellees and EPA against jurisdiction).
  13. Id. at 21-24.
  14. Id. at 25-26.
  15. Id. at 25-27.
  16. Id. at 27-28 (quoting 5 U.S.C. § 706(2)).
  17. Id. at 28.