UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
RURAL EMPOWERMENT ASSOCIATION FOR COMMUNITY HELP, et al.,
Plaintiffs,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Civil Action No. 18-2260 (TJK)
Defendants,
and
NATIONAL CATTLEMEN’S BEEF ASSOCIATION, et al.,
Intervenor-Defendants
MEMORANDUM ORDER
Plaintiffs, a series of nonprofits that combat pollution from animal production facilities to
protect human health, the environment, and animal welfare, challenge a rule and related guidance
issued by the Environmental Protection Agency. The rule and guidance exempt large industrial
farm operations from reporting requirements under EPCRA, the Emergency Planning and Com-
munity Right-to-Know Act. EPCRA establishes a regime for reporting releases of hazardous sub-
stances to local communities, including first responders. Defendants moved to dismiss Plaintiffs’
Amended Complaint in part, and the Court granted in part and denied in part that motion. Four
claims remain. Plaintiffs allege that the reporting rule violates EPCRA, is arbitrary and capricious,
and violated the procedural requirements of another statute, and that the related guidance contra-
venes EPCRA. In August 2021, the National Cattlemen’s Beef Association, National Pork Producers Council, American Farm Bureau Federation, and U.S. Poultry & Egg Association inter-
vened in support of Defendants. After the Court ordered the parties to submit a joint schedule for
briefing, Defendants moved to both voluntarily remand the case and to dismiss it. Intervenors do
not oppose, but Plaintiffs do. For the reasons explained below, the Court will grant Defendants’
request for voluntary remand but deny their request for dismissal.
I. Legal Standard
Courts “have broad discretion to grant or deny an agency’s motion to remand.” Util. Solid
Waste Activities Grp. v. EPA, 901 F.3d 414, 436 (D.C. Cir. 2018). Usually, courts “grant an
agency’s motion to remand so long as the agency intends to take further action with respect to the
original agency decision on review.” Id. (cleaned up). “Voluntary remand is typically appropriate
(i) when new evidence becomes available after an agency’s original decision was rendered, or (ii)
where intervening events outside of the agency’s control may affect the validity of an agency’s
actions.” FBME Bank Ltd. v Lew, 142 F. Supp. 3d 70, 73 (D.D.C. 2015) (cleaned up). “An agency
may also ‘request a remand (without confessing error) in order to reconsider its previous posi-
tion.’” Clark v. Perdue, No. 19-cv-394 (JEB), 2019 WL 2476614, at *2 (D.D.C. June 13, 2019)
(quoting Util. Solid Waste, 901 F.3d at 436). In reviewing such motions, courts should consider
“whether remand would unduly prejudice the non-moving party” and “if the agency’s request ap-
pears to be frivolous or made in bad faith.” Id. (cleaned up).
II. Analysis
The Court finds that Defendants’ reason for requesting voluntary remand is not frivolous,
nor is it made in bad faith; in fact, it appears legitimate and reasonable. And any prejudice that
may accrue to Plaintiffs is not undue. For these reasons, voluntary remand is appropriate, but the
Court will decline to dismiss the case.
2 Defendants seek voluntary remand for a straightforward and entirely legitimate reason: to
revisit the reporting rule given Executive Order (“EO”) 13990 signed by President Biden. That
EO outlines the policies of the Biden administration, which include “to improve public health and
protect our environment; to ensure access to clean air and water; . . . to hold polluters accountable,
including those who disproportionately harm communities of color and low-income communities;
[and] to reduce greenhouse gas emissions.” 86 Fed. Reg. 7,037 (Jan. 25, 2021). The EO then
directs federal agencies “to immediately review and, as appropriate and consistent with applicable
law, take action to address the promulgation of Federal regulations and other actions during the
last 4 years that conflict with these important national objectives, and to immediately commence
work to confront the climate crisis.” Id. In accordance with that directive, the Environmental
Protection Agency (“EPA”) began reviewing the reporting rule. In fact, in August 2021, EPA met
with Plaintiffs to discuss their concerns, including their concern about “EPA’s legal interpretation
in support of the Rule.” ECF No. 58-1 ¶ 8. After review was complete in November 2021, EPA
concluded that it “should conduct a rulemaking to revise or rescind the Rule,” and moved for
remand. Id. ¶ 9.
True, as Plaintiffs point out, Defendants have not confessed error or admitted that the rule
is improper. But an agency need not “confess error or impropriety in order to obtain a voluntary
remand.” Limnia, Inc. v. U.S. Dep’t of Energy, 857 F.3d 379, 387 (D.C. Cir. 2017). An agency
only needs to “profess intention to reconsider, re-review, or modify the original agency decision
that is the subject of the legal challenge,” id., which is exactly what Defendants have done. They
have committed to “revisit[ing]” EPA’s “interpretation of the governing statute, the procedures it
followed in reaching its decision, [and] the decision’s relationship to other agency policies.” ECF
No. 58 at 12–13. And more than that, EPA has concluded that it “should . . . revise or rescind the
3 Rule.” ECF No. 58-1 ¶ 9. All this appropriately reflects the Supreme Court’s admonition that
agencies “must consider varying interpretations and the wisdom of [their] polic[ies] on a continu-
ing basis, for example, in response to changed factual circumstances, or a change in administra-
tions.” See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)
(emphasis added) (citation omitted).
Defendants’ reconsideration may moot Plaintiffs’ claims, providing their requested relief
and saving the parties’ and the Court’s resources. EPA could rescind the rule. Or it could revise
the rule in a way that tracks Plaintiffs’ reading of the governing statute, is not arbitrary or capri-
cious, and follows the procedural requirements of other relevant statutes. Plaintiffs respond that
“EPA has undermined the protections and purpose of EPCRA for over a decade, depriving Plain-
tiffs and their members of vital information to which they are lawfully entitled, and nothing sug-
gests that it will do otherwise should this Court remand the Rule without vacatur.” ECF No. 59-1
at 51. But Plaintiffs’ only evidence on the latter point is what EPA did in a different case years
ago, when it “sat on its hands for four years until, upon a motion by the plaintiffs, the court recalled
the mandate.” Id. at 50–51. That says little about what is likely to happen here, where EPA has
pledged, in response to an Executive Order and after meeting with Plaintiffs, to either “revise or
rescind the Rule.” ECF No. 58 at 10–11.
All that said, voluntary remand is not cost-free. Defendants seek remand so that they can
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
RURAL EMPOWERMENT ASSOCIATION FOR COMMUNITY HELP, et al.,
Plaintiffs,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Civil Action No. 18-2260 (TJK)
Defendants,
and
NATIONAL CATTLEMEN’S BEEF ASSOCIATION, et al.,
Intervenor-Defendants
MEMORANDUM ORDER
Plaintiffs, a series of nonprofits that combat pollution from animal production facilities to
protect human health, the environment, and animal welfare, challenge a rule and related guidance
issued by the Environmental Protection Agency. The rule and guidance exempt large industrial
farm operations from reporting requirements under EPCRA, the Emergency Planning and Com-
munity Right-to-Know Act. EPCRA establishes a regime for reporting releases of hazardous sub-
stances to local communities, including first responders. Defendants moved to dismiss Plaintiffs’
Amended Complaint in part, and the Court granted in part and denied in part that motion. Four
claims remain. Plaintiffs allege that the reporting rule violates EPCRA, is arbitrary and capricious,
and violated the procedural requirements of another statute, and that the related guidance contra-
venes EPCRA. In August 2021, the National Cattlemen’s Beef Association, National Pork Producers Council, American Farm Bureau Federation, and U.S. Poultry & Egg Association inter-
vened in support of Defendants. After the Court ordered the parties to submit a joint schedule for
briefing, Defendants moved to both voluntarily remand the case and to dismiss it. Intervenors do
not oppose, but Plaintiffs do. For the reasons explained below, the Court will grant Defendants’
request for voluntary remand but deny their request for dismissal.
I. Legal Standard
Courts “have broad discretion to grant or deny an agency’s motion to remand.” Util. Solid
Waste Activities Grp. v. EPA, 901 F.3d 414, 436 (D.C. Cir. 2018). Usually, courts “grant an
agency’s motion to remand so long as the agency intends to take further action with respect to the
original agency decision on review.” Id. (cleaned up). “Voluntary remand is typically appropriate
(i) when new evidence becomes available after an agency’s original decision was rendered, or (ii)
where intervening events outside of the agency’s control may affect the validity of an agency’s
actions.” FBME Bank Ltd. v Lew, 142 F. Supp. 3d 70, 73 (D.D.C. 2015) (cleaned up). “An agency
may also ‘request a remand (without confessing error) in order to reconsider its previous posi-
tion.’” Clark v. Perdue, No. 19-cv-394 (JEB), 2019 WL 2476614, at *2 (D.D.C. June 13, 2019)
(quoting Util. Solid Waste, 901 F.3d at 436). In reviewing such motions, courts should consider
“whether remand would unduly prejudice the non-moving party” and “if the agency’s request ap-
pears to be frivolous or made in bad faith.” Id. (cleaned up).
II. Analysis
The Court finds that Defendants’ reason for requesting voluntary remand is not frivolous,
nor is it made in bad faith; in fact, it appears legitimate and reasonable. And any prejudice that
may accrue to Plaintiffs is not undue. For these reasons, voluntary remand is appropriate, but the
Court will decline to dismiss the case.
2 Defendants seek voluntary remand for a straightforward and entirely legitimate reason: to
revisit the reporting rule given Executive Order (“EO”) 13990 signed by President Biden. That
EO outlines the policies of the Biden administration, which include “to improve public health and
protect our environment; to ensure access to clean air and water; . . . to hold polluters accountable,
including those who disproportionately harm communities of color and low-income communities;
[and] to reduce greenhouse gas emissions.” 86 Fed. Reg. 7,037 (Jan. 25, 2021). The EO then
directs federal agencies “to immediately review and, as appropriate and consistent with applicable
law, take action to address the promulgation of Federal regulations and other actions during the
last 4 years that conflict with these important national objectives, and to immediately commence
work to confront the climate crisis.” Id. In accordance with that directive, the Environmental
Protection Agency (“EPA”) began reviewing the reporting rule. In fact, in August 2021, EPA met
with Plaintiffs to discuss their concerns, including their concern about “EPA’s legal interpretation
in support of the Rule.” ECF No. 58-1 ¶ 8. After review was complete in November 2021, EPA
concluded that it “should conduct a rulemaking to revise or rescind the Rule,” and moved for
remand. Id. ¶ 9.
True, as Plaintiffs point out, Defendants have not confessed error or admitted that the rule
is improper. But an agency need not “confess error or impropriety in order to obtain a voluntary
remand.” Limnia, Inc. v. U.S. Dep’t of Energy, 857 F.3d 379, 387 (D.C. Cir. 2017). An agency
only needs to “profess intention to reconsider, re-review, or modify the original agency decision
that is the subject of the legal challenge,” id., which is exactly what Defendants have done. They
have committed to “revisit[ing]” EPA’s “interpretation of the governing statute, the procedures it
followed in reaching its decision, [and] the decision’s relationship to other agency policies.” ECF
No. 58 at 12–13. And more than that, EPA has concluded that it “should . . . revise or rescind the
3 Rule.” ECF No. 58-1 ¶ 9. All this appropriately reflects the Supreme Court’s admonition that
agencies “must consider varying interpretations and the wisdom of [their] polic[ies] on a continu-
ing basis, for example, in response to changed factual circumstances, or a change in administra-
tions.” See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)
(emphasis added) (citation omitted).
Defendants’ reconsideration may moot Plaintiffs’ claims, providing their requested relief
and saving the parties’ and the Court’s resources. EPA could rescind the rule. Or it could revise
the rule in a way that tracks Plaintiffs’ reading of the governing statute, is not arbitrary or capri-
cious, and follows the procedural requirements of other relevant statutes. Plaintiffs respond that
“EPA has undermined the protections and purpose of EPCRA for over a decade, depriving Plain-
tiffs and their members of vital information to which they are lawfully entitled, and nothing sug-
gests that it will do otherwise should this Court remand the Rule without vacatur.” ECF No. 59-1
at 51. But Plaintiffs’ only evidence on the latter point is what EPA did in a different case years
ago, when it “sat on its hands for four years until, upon a motion by the plaintiffs, the court recalled
the mandate.” Id. at 50–51. That says little about what is likely to happen here, where EPA has
pledged, in response to an Executive Order and after meeting with Plaintiffs, to either “revise or
rescind the Rule.” ECF No. 58 at 10–11.
All that said, voluntary remand is not cost-free. Defendants seek remand so that they can
conduct notice-and-comment rulemaking to revise or rescind the rule. And notice-and-comment
rulemaking takes time. Meanwhile, remand at this stage—before summary judgment briefing is
complete—would result in the rule remaining in effect while rulemaking takes place.1 And all the
1 When Plaintiffs opposed Defendants’ motion for voluntary remand, they also cross-moved for summary judgment. See ECF No. 59. The Court granted Defendants’ motion to stay briefing on 4 while, Plaintiffs say they continue to lack the information they seek to “enhance their advocacy
for stronger public health protections, to hold livestock facility operators accountable for hazard-
ous emissions, and to make informed decisions about their health and the health of their commu-
nities.” ECF No. 59-1 at 51. Still, the Court finds that voluntary remand would not unduly preju-
dice Plaintiffs. For one thing, a motion for summary judgment would not likely be decided any
time soon. For another, during this time, Plaintiffs presumably will not be sitting idly—they will
be able to shape EPA’s rulemaking by commenting on a proposed rule and perhaps by meeting
again with EPA. Finally, the Court will monitor whether EPA’s rulemaking proceeds apace by
continuing to exercise jurisdiction following remand.
III. Conclusion and Order
For all the above reasons, the Court hereby ORDERS that Defendants’ Motion, ECF No.
58, is GRANTED IN PART AND DENIED IN PART. It is further ORDERED that the case is
REMANDED to the Environmental Protection Agency. The Court shall retain jurisdiction, and
Defendants shall provide the Court reports of the status of its rulemaking every 90 days from the
date of this Order.
SO ORDERED. /s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: February 14, 2022
Plaintiffs’ cross-motion for summary judgment pending resolution of Defendants’ motion for vol- untary remand. See January 10, 2022 Minute Order. 5