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Supreme Court DACA Ruling Could Sway Environmental Permits’ Fate

June 23, 2020, 9:30 AM

The Supreme Court’s surprise rebuke last week of the Trump administration’s bid to rescind the Obama-era DACA immigration program may have unexpected impacts on environmental litigation over fossil fuel development, pipelines, and other projects.

The justices ruled June 18 that Trump officials violated key principles of administrative law when they opted to scrap the Deferred Action for Childhood Arrivals policy.

Legal scholars seized on one aspect of the majority opinion to question whether lower courts are likely to continue a practice—known in legalese as “remand without vacatur"—of leaving flawed government decisions intact while giving agencies a second chance to explain themselves.

That’s a central issue for dozens of environmental law cases. In litigation over the embattled Dakota Access pipeline, for example, a federal court said the Army Corps of Engineers broke the law when it approved the project, and is now deciding whether a critical permit should remain in place while the agency redoes its analysis.

Environmental advocates have had mixed reactions about how much the Supreme Court’s ruling will affect that aspect of their cases, but some are eager to put it to the test.

Though it will take some time to see how lower courts apply the Supreme Court’s ruling, plaintiffs are sure to use it to support their position that courts should scrap agency decisions that violate federal law, said Western Environmental Law Center attorney Kyle Tisdel, who’s involved in challenges to oil and gas development on public lands.

Inside the DACA Decision

The Supreme Court’s DACA decision touches on multiple administrative law issues that could come in handy for environmental litigants, emphasizing that officials must follow proper procedures when reversing their predecessors’ decisions, and must consider how changes could affect people who relied on any policy that’s being scrapped.

Administrative law scholars reviewing the ruling quickly zeroed in on another element of the case that could have ripple effects: the majority’s application of a landmark 1943 case known as Chenery I, which says agencies can’t engage in post hoc, or after-the-fact, rationalization to support their decisions.

Writing for the majority, Chief Justice John Roberts explained that the precedent barred the high court from considering a memo from the Department of Homeland Security’s then-Secretary Kirstjen M. Nielsen supporting the DACA rescission nine months after it was announced.

Nielsen offered the after-the-fact justification in response to a lower court’s order that said the agency’s original explanation for scrapping the program was deficient.

“The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted,” Roberts wrote, refusing to consider the memo as part of the case’s record.

Leverage to Scrap Decisions

The DACA decision didn’t directly address remand-without-vacatur, but administrative law scholars said it appeared to cut against the practice because using it would encourage an agency to engage in the same kind of after-the-fact justification Roberts rejected.

“Does this mean that Chenery I, as applied in the DACA rescission case, prohibits remand without vacatur?” Ohio State University law professor Christopher J. Walker wrote last week.

“Roberts certainly does not say so explicitly,” he continued. “Yet it is hard to escape the conclusion in how Chenery I was applied to bar the agency head’s supplemental memo.”

Plaintiffs can now “leverage” the DACA decision to try to topple other agency decisions, Walker told Bloomberg Law.

University of Minnesota professor Kristin E. Hickman said the remand-without-vacatur approach has always been in tension with the 1943 precedent, and the Supreme Court’s latest embrace of the standard may steer courts away from the practice.

“I can imagine a circuit court looking at Chief Justice Roberts’s analysis and application of Chenery I in the DACA case and being much more cautious about remanding without vacatur” in cases involving insufficient agency explanations, she said.

Environmental Cases

That’s welcome news to some environmental lawyers who have long opposed judges’ practice of remanding agency decisions without vacating them.

The situation arises often, for example, in challenges to federal approvals of pipelines and fossil fuel development on public lands.

The default consequence for a violation of the National Environmental Policy Act and Administrative Procedure Act is for a court to scrap the underlying agency approval. Instead, many courts have recently opted to leave the contested permit in place and give government officials time to bolster their explanation.

That remand-without-vacatur approach is especially frustrating for NEPA cases, said Earthjustice attorney Jan Hasselman, who is litigating against the Dakota Access pipeline. The DACA decision may encourage courts to take another look, he said.

Dakota Access

In the Dakota Access case, the Standing Rock Sioux and other tribes are facing off with the Trump administration and pipeline developer Energy Transfer Partners over whether the project—which is in service, transporting oil from North Dakota to Illinois—should lose a key permit after a federal judge said the Army Corps of Engineers violated NEPA and the APA.

The U.S. District Court for the District of Columbia is expected to decide the question this summer.

Tisdel, the Western Environmental Law Center lawyer, said he expects to cite the ruling in future legal briefs to stress that vacating a flawed permit is the “appropriate remedy.”

Tisdel is involved in a series of cases that challenge the approval of fossil fuel development on public lands. Several courts have agreed that various approvals violated NEPA and the APA, but many judges have declined to actually scrap the problematic leases and permits.

‘Exclamation Point’

Vermont Law School professor Patrick Parenteau said he agrees that the DACA decision “raises a question about the efficacy of that non-remedy.”

But, he added, “without a more explicit statement from Roberts, it’s impossible to know whether he questions the legitimacy of that approach in all cases or just in this case.”

And the fact that Roberts doesn’t directly grapple with remand-without-vacatur dampens any effect the decision could have on that issue, said environmental litigator William S. Eubanks II of Eubanks & Associates LLC.

Instead, Eubanks said, it simply “puts an exclamation point on what were already pretty well-established principles.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Renee Schoof at rschoof@bloombergindustry.com

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