Notice & Comment

D.C. Circuit Review – Reviewed: What’s the Most Common Caption?

A caption this week caught my attention: Sierra Club v. EPA. The reason is not because it is an unusual caption. Just the opposite. Since I started D.C. Circuit Review – Reviewed in August 2015, I’ve seen six published cases with that same name, including this week’s.* That realization got me thinking: In the history of the D.C. Circuit, how many published cases are called Sierra Club v. EPA? Using Westlaw and moving quickly (so I may have missed a couple), I count 25. That count doesn’t include all relevant cases. Sometimes, for instance, Sierra Club is a petitioner but not the first listed. And some cases are not captioned “Sierra Club v. EPA,” but instead “Sierra Club v. [Administrator’s last name].” But I like focusing on Sierra Club v. EPA.

So here is this week’s question: What is the most common case name in the D.C. Circuit? “Cobell” isn’t a bad guess, but the defendant changed too often. Readers — do you have any other ideas? (For what it is worth, I haven’t checked them all, but my guess is United States v. Smith.)

To be sure, a case name is relatively trivial. But it isn’t entirely irrelevant; it gives a sense of the court. And Sierra Club v. EPA is a very “D.C. Circuit” caption. Those two parties have been litigating against each other in the D.C. Circuit for a very long time. This week’s Sierra Club v. EPA is a good example. Judge Williams (joined by Judges Griffith and Wilkins) addressed a 2016 EPA rule that “(1) tightened procedures for state changes to annual monitoring network plans, (2) authorized limited reductions in required sampling frequency, and (3) proposed revisions to certain quality assurance requirements related to monitoring for Prevention of Significant Deterioration.” Sierra Club challenged that rule for three reasons. Two, however, are jurisdictionally barred; one part of the rule “did no more than echo a prior EPA regulation,” and so cannot be challenged under the reopening doctrine, and Sierra Club “lacks standing to attack the sampling frequency changes” because its theory “stacks speculation upon hypothetical upon speculation.” The Court did address one issue on the merits, however. In the final rule, EPA “inaccurately stated that it had received only favorable comments on its proposed changes.” Does that obvious error require remand? No, said the Court, quoting … Sierra Club v. United States, 353 F.3d 976, 986 (D.C. Cir. 2004) (Roberts, J.) (“[A] failure to respond to comments is significant only insofar as it demonstrates that the agency’s decision was not based on a consideration of the relevant factors.”).

On the subject of environmental litigation, court watchers should read National Parks Conservation Association v. Semonite, which partially grants panel rehearing of a decision from a couple of months ago. But along the way, the Court had some interesting things to say. Consider:

  • On March 1, 2019, this court held in the clearest of terms that the U.S. Army Corps of Engineers had violated the National Environmental Policy Act (NEPA) when, without first preparing an environmental impact statement, it issued a permit to the Virginia Electric and Power Company (“Dominion”) to construct the Surry-Skiffes Creek-Whealton project, consisting in relevant part of a series of electrical transmission towers across the historic James River. … We vacated the permit.
  • Petitioners urge us “to remand to the agency without vacating the underlying permit,” Corps Petition, at 14. In support, the Corps observes that when this court decided the case it did not “have before it the recent factual developments regarding completion of construction and the disruption that vacating the permit could cause.” That, of course, is because neither petitioner bothered to advise us that construction on the project had been completed and the transmission lines electrified the week before we issued our opinion.
  • In support of their estoppel argument, the Conservation Groups point out that Petitioners’ position regarding the appropriate remedy on appeal has changed during the course of this litigation. To defeat the Conservation Groups’ motions to enjoin construction of the towers, Petitioners assured the district court that an injunction was unnecessary because if the Conservation Groups succeeded on the merits—that is, if the court ruled that the Corps was required to prepare an EIS—the permit could be vacated and the towers correspondingly removed. … The district court relied on that representation.
  • We find the foregoing more than a little troubling. Had the Corps and Dominion said all along what they say now, either the district court or this court might have enjoined tower construction, in which case our consideration of “disruptive consequences,” would focus not on shutting down and removing the towers, but rather on prohibiting their construction — a very different balance indeed.
  • All this said, we nonetheless believe the best course of action is to remand the case to the district court to consider, in view of Petitioners’ and the Conservation Groups’ arguments, whether vacatur remains the appropriate remedy, including whether Petitioners have forfeited or are judicially estopped from now opposing vacatur. That court is best positioned to order additional briefing, gather evidence, make factual findings, and determine the remedies necessary to protect the purpose and integrity of the EIS process. See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991) (noting that district courts possess “the ability to fashion an appropriate sanction for conduct which abuses the judicial process”).

Interesting. (An aside: I bet Judge Randolph has a solution in mind for the broader vacatur-versus-remand question.)

My personal favorite decision this week is CREW v. Trump — because it is about mandamus! When I first started blogging, I had a tough choice to make. Should I focus on mandamus or the D.C. Circuit? My idea was to name my posts “Mandamus Watch” and to blog whenever any circuit court grants or denies a writ of mandamus. I decided to go with D.C. Circuit Review – Reviewed instead. That probably was the right call, but I wonder what I would have found if I had begun systematically tracking mandamus decisions. Well, this week we have a D.C. Circuit mandamus decision, so we get the best of both worlds. What’s the case about? Here is how Judge Tatel (joined by Judges Pillard and Edwards) opened the Court’s opinion:

There is a fair bit going on in this case, but here is a particularly important paragraph:

Judge Katsas, joined by Judges Rogers and Millett, wrote the opinion in Trudel v. SunTrust Bank, which concerns “accounting and fraudulent-concealment claims arising from the loss of funds deposited into a Florida bank account more than two decades ago.” This is a great case if you are interested in the relationship between Federal Rule 59 and Federal Rule 15. (I’ll leave it that; if that sentence interests you, you already clicked on the opinion and started reading. And if that sentence doesn’t interest you, well, nothing I can say will change your mind.)

Finally, we come to D.C. Healthcare Systems, Inc. v. District of Columbia, which is about — I kid you not — the Rooker-Feldman doctrine. This doctrine bars a party from seeking review of a state judgment in federal court (other than via appellate review, of course, in the Supreme Court). Chief Judge Garland, joined by Judges Griffith and Pillard, concluded that the district court erred by using that doctrine where the claims at issue were independent from those litigated in D.C. court. The facts are complicated, but this will give you a flavor of the analysis:

Hmmm. Perhaps the D.C. Circuit has decided a Sierra Club case about Rooker Feldman. Alas, when I use Westlaw’s D.C. Circuit database, the following search comes up empty: TI(“sierra club”) & “rooker feldman.”

But what about this search? TI(“sierra club”) & “mandamus.” That seems like a hunt for the next time we have a case captioned Sierra Club v. EPA. Enjoy the weekend.

* Well, six if you count Sierra Club de Puerto Rico v. EPA, which I do. I also treat EPA, U.S. EPA, and Environmental Protection Agency as interchangeable.

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