United States District Court, District of Columbia
PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, et al., Plaintiffs,
UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants.
MEMORANDUM OPINION ON VACATUR
D. BATES United States District Judge.
October 29, 2014, plaintiffs Ken Stromborg, Bill Koonz, James
Ludwig, Mark Tweedale, Dennis Wild, and Public Employees for
Environmental Responsibility (collectively, PEER) brought
suit against the Fish and Wildlife Service and FWS Director
Daniel M. Ashe (collectively, FWS) to challenge the
Service’s extension of two depredation orders that
authorize commercial freshwater aquaculture producers and
states and tribes to kill double-crested cormorants.
See 50 C.F.R. §§ 21.47, 21.48. On March
29, 2016, the Court granted plaintiffs’ motion for
summary judgment on their National Environmental Policy Act
(“NEPA”) claims and remanded the depredation
orders to FWS. The same day, the Court ordered FWS to submit
a proposed remediation plan and any comments on the
injunctive relief sought by PEER. PEER was directed to file a
response to the proposed plans. The issue of remedy is now
ripe and before the Court.
remedy for plaintiffs’ NEPA claim is governed by the
Administrative Procedure Act, which provides that the
reviewing court shall “hold unlawful and set
aside agency action, findings, and conclusions found to
be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A) (emphasis added); see Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14 (1971)
(“In all cases agency action must be set aside if the
action was ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law’ or
if the action failed to meet statutory, procedural, or
constitutional requirements.”). The Court, however, is
not without discretion: “The decision whether to vacate
depends on the seriousness of the order’s deficiencies
. . . and the disruptive consequences of an interim change
that may itself be changed.” Allied-Signal, Inc. v.
U.S. Nuclear Regulatory Comm’n, 988 F.2d 146,
150-51 (D.C. Cir. 1993) (internal quotation marks omitted).
Still, in this district, “vacating a rule or action
promulgated in violation of NEPA is the standard
remedy.” Humane Soc’y of U.S. v.
Johanns, 520 F.Supp.2d 8, 37 (D.D.C. 2007); see
Realty Income Tr. v. Eckerd, 564 F.2d 447, 456 (D.C.
Cir. 1977) (“[W]hen an action is being undertaken in
violation of NEPA, there is a presumption that injunctive
relief should be granted against continuation of the action
until the agency brings itself into compliance.”).
review of NEPA cases in this district bears out the primacy
of vacatur to remedy NEPA violations. See Reed v.
Salazar, 744 F.Supp.2d 98, 118-20 (D.D.C. 2010) (finding
NEPA violation and ordering vacatur); Sierra Club v. Van
Antwerp, 719 F.Supp.2d 77, 78-80 (D.D.C. 2010) (finding
NEPA violation and ordering remand with partial vacatur);
Greater Yellowstone Coal. v. Kempthorne, 577
F.Supp.2d 183, 204-05, 210 (D.D.C. 2008) (finding NEPA
violation and ordering vacatur); Humane Soc’y of
U.S., 520 F.Supp.2d at 37-38 (same); Greater
Yellowstone Coal. v. Bosworth, 209 F.Supp.2d 156,
163-64 (D.D.C. 2002) (same); cf. Bldg. Indus. Legal Def.
Found. v. Norton, 231 F.Supp.2d 100, 101-02, 104-07
(D.D.C. 2002) (ordering vacatur where parties agreed that FWS
had violated the Endangered Species Act); Am. Oceans
Campaign v. Daley, 183 F.Supp.2d 1, 17-21 (D.D.C. 2000)
(finding NEPA violation and entering an injunction against
the enforcement of the deficient rule). And in the NEPA cases
cited by defendants, where courts ordered remand without
vacatur, the courts generally did so without explanation.
See, e.g., Idaho v. Interstate Commerce
Comm’n, 35 F.3d 585, 599 (D.C. Cir. 1994);
Nat’l Wildlife Fed’n v. Norton, 332
F.Supp.2d 170, 187 (D.D.C. 2004).
contend that this is not the type of case that merits
departure from the presumptive remedy of vacatur. Pls.’
Mem. [ECF No. 38] at 8-13. According to PEER, the
deficiencies in the agency’s environmental assessment
(“EA”) are significant whereas the disruptive
consequences of vacatur are not. Id. at 13-19. FWS,
on the other hand, believes that vacatur would indeed
“have wide-ranging detrimental impacts, ”
including environmental impacts, administrative burdens on
FWS, and burdens on the regulated community. Defs.’
Mem. [ECF No. 37] at 6, see id. at 6-9. For the
reasons that follow, the Court is not convinced that
rescinding the orders while FWS conducts its supplementary
NEPA analysis will be so disruptive as to merit an exception
from the standard remedy of vacatur.
argues that vacatur will cause “substantial disruption
to the regulated community and the Service, ” as well
as “significant impacts to recreational fisheries and
aquaculture industry.” Id. at 8, see
id. at 8-9. Courts do consider disruptive impacts to the
regulated industry in non-environmental cases. See,
e.g., Chamber of Commerce v. SEC, 443 F.3d 890,
909 (D.C. Cir. 2006) (considering “disruption to the
mutual fund industry” if the Court were to vacate rule
promulgated by the SEC). But it is not clear that economic
concerns are as relevant in an environmental case like this
one. See Ctr. for Food Safety v. Vilsack, 734
F.Supp.2d 948, 953 (N.D. Cal. 2010) (expressing doubt over
the propriety of considering “economic consequences . .
. in environmental cases”). NEPA’s focus is on
“requiring agencies to undertake analyses of the
environmental impact of their proposals and
actions.” Del. Riverkeeper Network v. FERC,
753 F.3d 1304, 1310 (D.C. Cir. 2014) (emphasis added)
(internal quotation marks omitted). Absent a strong showing
by FWS that vacatur will unduly harm economic interests like
aquaculture or recreational fishing, the Court is reluctant
to rely on economic disruption as the basis for denying
plaintiffs the injunctive relief they seek.
FWS has not made a compelling case that rescission will cause
significant consequences to aquaculture because the
forecasted harms are imprecise or speculative. Cf. Bldg.
Indus. Legal Def. Found., 231 F.Supp.2d at 106
(“In assessing the ‘disruptive
consequences’ of vacatur, the Court cannot rely upon
intervenors’ abstract policy arguments . . . .”
(internal citation omitted)). For example, FWS claims that
“[f]isheries impacts can be in the millions of
dollars” and that “the impacts to the aquaculture
could be in the millions of dollars.”
Defs.’ Mem. at 8 (emphases added). Not only do these
consequences sound entirely conjectural, they are also
disputed by PEER. As to the impact on the aquaculture
industry, for example, PEER argues that FWS has relied on
decade old-figures from “the short-lived economic peak
of the southern catfish industry.” 2d Wild Decl. [ECF
No. 38-2] ¶ 5. Further, the projection of
“millions of dollars” is based off of cormorant
damage over a 20-year-period. Ford Decl. [ECF No. 37-1]
¶ 15. But the Court sees no reason to expect such
protracted consequences. FWS has represented that its
supplemental analysis under NEPA will take only seven months.
Defs.’ Mem. at 11. In short, even if the Court were
inclined to rely heavily on a disruption to commercial
interests, FWS’s position that vacatur will cause
detrimental economic impacts rests on very little substance
on to FWS’s complaints about impacts to its own
operations and the “regulated community, ” the
Court finds the agency’s concerns are frankly
If the Court were to vacate the Orders, the immediate effect
would be that activities the regulated community undertakes
on a daily basis would have to stop until a depredation
permit was submitted . . . . This reason alone provides ample
rationale to leave the Orders in place, as courts repeatedly
have exercised their discretion to avoid the vacatur of an
agency action where such vacatur would cause serious
disruption of an affected industry and entities.
Id. at 8. The “activities” FWS has
referenced are the killing of cormorants under the
depredation orders the Court has found wanting. If this
argument were enough to carry the day, then it seems vacatur
would never be appropriate. Obviously the effect of vacatur
is to stop these activities. That “reason alone”
cannot be enough.
prediction of environmental harms is similarly abstract.
“The Service estimates that the cormorant population
would increase and stabilize at a higher number . . .
.” Ford Decl. ¶ 13. That seems likely. But how
much higher? And would that population increase be
significant even though FWS represents that new final
depredation orders can be issued in seven months? Even
assuming that the population does increase, FWS is noticeably
tentative about the consequences of that cormorant population
growth. Defs.’ Mem. at 7 (“[C]ormorants
may cause habitat damage” due to increased
excrement); id. (“Cormorants may also
move in to areas where they may congregate and
damage vulnerable species . . . .); id. (“In
some locations this may shift predation pressure
onto high conservation priority fish species.”) (all
emphases added). These noncommittal representations are not
compelling. See Nat. Res. Def. Council v. EPA, 676
F.Supp.2d 307, 314 (S.D.N.Y. 2009) (expressing skepticism
over agency’s position that vacatur “may
cause growers to use pesticides” (emphasis in
original)). And again they are countered by PEER, which
argues, for example, that studies show that cormorants shift
predation to invasive species not to important fish species.
2d Ludwig Decl. [ECF No. 38-1] ¶ 7. Hence, while FWS may
in the future be able to assemble a record that shows serious
cormorant-caused environmental damage, their proffer at this
time does not persuade the Court that vacatur of the
depredation orders will cause serious environmental harm.
fact, according to PEER, environmental harm will result if
the orders are not rescinded. It goes without saying
that if these orders are left in place, additional cormorants
will be killed. Pls.’ Mem. at 19. As a result, PEER
argues, certain beneficial ecosystem services that cormorants
provide will be lost. Id. PEER’s expert on
colonial waterbirds James Ludwig attests that cormorants prey
principally on invasive fish species and therefore reduce
“burgeoning populations of invasive species that are
known to harm sport fisheries.” 2d Ludwig Decl.
¶¶ 9a, 15. Ludwig also states that cormorants help
co-nesting species because they “help create the type
of habitat in which white pelicans-which cannot tolerate
woody vegetation-thrive.” Id. ¶ 9. In
sum, FWS has not made a persuasive case that vacatur will
cause detrimental environmental effects, particularly given
the countervailing evidence offered by PEER that leaving the
orders in place will have its own environmental consequences.
if the Court were to vacate these orders, the parties agree
that alternative routes remain available for the management
of cormorant populations, for example, through individual
predation permits under the Migratory Bird Treaty Act.
Pls.’ Mem. at 3; Defs.’ Mem. at 8; see
50 C.F.R. § 21.41. According to FWS, “migratory
bird permits could be requested and issued for the reduction
of cormorant impacts on sensitive species or their habitats
(vegetation).” Ford Decl. ¶ 12. While the Court
understands the limitations of relying on state management
plans and individual permits, see Defs.’ Mem.
at 8, Ford Decl. ¶¶ 12, 18-20, particularly in the
long term, the takeaway remains that any seriously
detrimental impact of vacatur in the short term could be
mitigated. The availability of these alternative measures
counsels in favor of vacatur. North Carolina v. EPA,
550 F.3d 1176, 1178 (D.C. Cir. 2008) (Rogers, J., concurring
in granting rehearing) (explaining that vacatur may be
appropriate when “other statutory ...