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Pre-Merits Vacatur: An Efficient, Equitable, And Environmentally Sound Remedy, Stuart Gillespie

Pace Environmental Law Review

Federal agencies are increasingly requesting voluntary remands of challenged rules, thereby circumventing judicial review, and avoiding ever having to defend the merits of those rules. Courts routinely grant these extraordinary requests, often under the guise of saving judicial resources and giving agencies a second chance to reconsider. But voluntary remands come at a steep cost, particularly in the arena of environmental litigation. There, voluntary remands not only deprive litigants of their day in court, but can also subject them (and the broader public) to unlawful and inadequate rules that are causing serious environmental harm.

Courts have long guarded against the …