312 F. Supp. 3d 878
E.D. Cal.2018Background
- Plaintiffs (water management and conservation groups) challenged a 10-year inter-basin water transfer program moving water from areas upstream of the Sacramento/San Joaquin Delta to buyers south of the Delta, alleging violations of NEPA, CEQA, and the ESA.
- Federal Defendants (Bureau of Reclamation, Interior, FWS) and the San Luis & Delta-Mendota Water Authority prepared a Final EIS/R and a FWS Biological Opinion (BiOp) with an Incidental Take Statement (ITS) approving the Project.
- The court previously issued a 133-page MSJ Order finding both the FEIS/R and the BiOp/ITS unlawful in at least some respects and directed the parties to confer on a remand/judgment plan.
- Parties could not agree whether the court should remand with or without vacatur; Defendants sought remand without vacatur, Plaintiffs sought vacatur.
- The court applied the Allied-Signal factors (seriousness of error; disruptive consequences of vacatur), considered projected timelines and practical impacts on transfer season, and found vacatur appropriate for both the FEIS/R and the BiOp/ITS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether vacatur is required for agency documents found unlawful | Vacatur is the presumptive remedy under APA and should be ordered for FEIS/R and BiOp/ITS | Remand without vacatur is appropriate to avoid disruption to transfer approvals and delays to the project | Vacatur ordered for both FEIS/R and BiOp/ITS; remand with vacatur required |
| Whether disruptive consequences of vacatur outweigh errors | Any delay is outweighed by need to correct unlawful documents; no significant near-term transfers will be affected | Vacatur would delay consultation, require restart of ESA process, and risk disrupting 2019 transfer approvals | Court found asserted procedural delays insufficient to justify remand without vacatur; disruptive consequences do not outweigh vacatur presumption |
| Seriousness of agency errors in the BiOp/ITS | Errors identified (lack of clarity on fallowing near known GGS occurrences, unclear priority area definitions, failure to justify differential protections for rice fields vs. canals) are significant and warrant vacatur | Defendants claim errors are minor and can be clarified quickly; FWS will condition ITSs pending remand | Court found the BiOp/ITS errors significant and insufficiently explained; vacatur warranted to ensure proper ESA protections |
| Whether FEIS/R can remain in effect during remand | Plaintiff: FEIS/R is unlawful and should be vacated | Defendant: FEIS/R should remain to avoid disruption | Court concluded no irremediable harm from vacating FEIS/R and ordered vacatur |
Key Cases Cited
- Se. Alaska Conserv. Council v. U.S. Army Corps of Eng'rs, 486 F.3d 638 (9th Cir. 2007) (vacatur is normal remedy for unlawful agency action under APA)
- Coeur Alaska v. Se. Alaska Conserv. Council, 557 U.S. 261 (2009) (Supreme Court decision cited as resolution of other grounds in Se. Alaska case)
- Cal. Communities Against Toxics v. U.S. Envtl. Prot. Agency, 688 F.3d 989 (9th Cir. 2012) (equitable remand without vacatur may be appropriate in limited circumstances)
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146 (D.C. Cir. 1993) (sets two-factor test for vacatur: seriousness of error and disruptive consequences)
- Klamath-Siskiyou Wildlands Ctr. v. Nat'l Oceanic & Atmospheric Admin. Nat'l Marine Fisheries Serv., 109 F. Supp. 3d 1238 (N.D. Cal. 2015) (application of Allied-Signal factors in environmental context)
- Humane Soc'y v. Locke, 626 F.3d 1040 (9th Cir. 2010) (remand without vacatur reserved for rare circumstances)
- Ctr. for Food Safety v. Vilsack, 734 F. Supp. 2d 948 (N.D. Cal. 2010) (serious irreparable environmental injury can justify remand without vacatur)
- Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002) (assessing likelihood an agency can justify future decisions when evaluating vacatur)