FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


STATE OF CALIFORNIA, by and              No. 19-17480
through Attorney General Xavier
Becerra and the California Air              D.C. No.
Resources Board; STATE OF                4:18-cv-03237-
ILLINOIS; STATE OF MARYLAND;                  HSG
STATE OF NEW MEXICO; STATE OF
OREGON; COMMONWEALTH OF
PENNSYLVANIA; STATE OF RHODE               OPINION
ISLAND; STATE OF VERMONT,
                 Plaintiffs-Appellees,

ENVIRONMENTAL DEFENSE FUND,
      Intervenor-Plaintiff-Appellee,

                  v.

U.S. ENVIRONMENTAL PROTECTION
AGENCY; ANDREW WHEELER, Acting
Administrator of the U.S.
Environmental Protection Agency,
             Defendants-Appellants,

                 and

E. SCOTT PRUITT, Administrator,
U.S. EPA,
                        Defendant.
2               STATE OF CALIFORNIA V. USEPA

          Appeal from the United States District Court
            for the Northern District of California
        Haywood S. Gilliam, Jr., District Judge, Presiding

              Argued and Submitted July 17, 2020
                  San Francisco, California

                     Filed October 22, 2020

         Before: Eugene E. Siler, * Kenneth K. Lee, and
              Patrick J. Bumatay, Circuit Judges.

                   Opinion by Judge Bumatay


                          SUMMARY **


                      Environmental Law

   The panel reversed the district court’s decision to deny a
Fed. R. Civ. P. 60(b) motion to modify an injunction which
required the U.S. Environmental Protection Agency
(“EPA”) to promulgate its federal landfill emissions plan by
November 6, 2019.

    Several States sued to force the EPA to promulgate its
federal plan. Subsequent to the district court’s May 6, 2019
injunction order, the EPA promulgated new regulations

    *
     The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              STATE OF CALIFORNIA V. USEPA                    3

moving the EPA’s deadline for promulgating a federal plan
to August 30, 2021. Faced with the dueling deadlines of the
district court’s injunction requiring a plan by November 6,
2019, and the new regulations establishing August 30, 2021
as the deadline, the EPA filed its Rule 60(b) motion
requesting relief from the district court’s injunction.

    The panel held that the district court abused its discretion
in denying the EPA’s request for relief under Fed. R. Civ. P.
60(b)(5) because EPA’s new regulations constituted a
change in law, and removed the legal basis for the court’s
deadline. A shift in the legal landscape that removed the
basis for an order warranted modification of the injunction.
The panel rejected the States’ contention that courts must
look beyond the new regulations and conduct a broad, fact-
specific inquiry into whether modification prevented
inequity. The panel remanded with instruction for the
district court to modify the injunction consistent with this
opinion.


                         COUNSEL

Joan M. Pepin (argued), David Gunter, and Leslie M. Hill,
Attorneys; Eric Grant, Deputy Assistant Attorney General;
Jeffrey Bossert Clark, Assistant Attorney General;
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.; Matthew C.
Marks and Karen J. Palmer, Attorneys, EPA Office of
General Counsel, Washington, D.C.; for Defendants-
Appellants.

Elizabeth B. Rumsey (argued) and Julia K. Forgie, Deputy
Attorneys General; Gary Tavetian and David A. Zonana,
Supervising Deputy Attorneys General; Robert Byrne and
4            STATE OF CALIFORNIA V. USEPA

Sally Magnani, Senior Assistant Attorneys General; Xavier
Becerra, Attorney General; Office of the Attorney General,
Oakland, California; Kwame Raoul, Attorney General;
Daniel I. Rottenberg, Assistant Attorney General; Attorney
General’s Office, Chicago, Illinois; Brian E. Frosh, Attorney
General; Leah J. Tulin, Assistant Attorney General;
Attorney General’s Office, Baltimore, Maryland; Hector
Balderas, Attorney General; Bill Grantham, Assistant
Attorney General; Office of the Attorney General,
Albuquerque, New Mexico; Ellen F. Rosenblum, Attorney
General; Paul Garrahan, Attorney-Charge, Natural
Resources Division; Oregon Department of Justice; Salem,
Oregon; Josh Shapiro, Attorney General; Michael J. Fischer,
Chief Deputy Attorney General; Robert A. Reiley, Assistant
Director, Department of Environment Protection; Office of
the Attorney General, Harrisburg, Pennsylvania; Thomas J.
Donovan Jr., Attorney General; Nicholas F. Persampieri,
Assistant Attorney General; Office of the Attorney General;
Montpelier, Vermont; for Plaintiffs-Appellees.

Susannah Weaver (argued) and Matthew Littleton, Donahue
Goldberg Weaver & Littleton, Washington, D.C.; Peter
Zalzal and Rachel Fullmer, Environmental Defense Fund,
Boulder, Colorado; for Intervenor-Plaintiff-Appellee.
              STATE OF CALIFORNIA V. USEPA                    5

                          OPINION

BUMATAY, Circuit Judge:

    On one level this case is about trash. When we toss our
food packaging, the core of an apple, or almost any other
material, our garbage winds up in one place: municipal solid-
waste landfills. Over a thousand of these landfills are littered
across the country to store and process household waste.
Responsibility for regulating such landfills rests with the
Environmental Protection Agency, in cooperation with
states. This includes promulgating emissions guidelines—
because gases like methane and carbon dioxide are produced
as a byproduct of the waste-decomposition process—and
issuing plans detailing how those guidelines will be
implemented.

     EPA promulgated new landfill emissions guidelines in
2016. Doing so set off a series of mandates for states and
EPA. First, each state was required to submit a plan on how
it would implement the new guidelines. Second, EPA was
to approve or disapprove each state plan it received. Finally,
for states that failed to submit a plan at all, EPA had to
promulgate a federal plan that would govern implementation
in those states. The deadline for EPA to comply with its final
requirement—issuing the federal plan—was set by
regulation for November 30, 2017. But EPA blew this
deadline.

    Several states sued to force EPA to promulgate its
federal plan. While EPA responded to the suit, it also kicked
off the rulemaking process to extend its regulatory deadline
for issuing a federal plan. While this rulemaking was
underway, the district court ruled for the plaintiff states and
entered an injunction requiring EPA to promulgate the plan
within six months. A few months later, EPA finalized the
6             STATE OF CALIFORNIA V. USEPA

rulemaking process, which extended its regulatory deadline
by two years.

    At this point, EPA faced two conflicting deadlines:
November 2019 under the court’s order and August 2021
under the amended regulations. EPA asked the district court
to modify the injunction, but it declined to do so. Instead,
the district court found the prior injunction “pose[d] no
obstacle” to EPA and that, in spite of the new regulations,
“all other circumstances indicate that enforcement of the
judgment is still equitable.” California v. EPA, No. 18-cv-
3237-HSG, 

, at *3–4 (N.D. Cal. Nov. 5,
2019).

    So, this case is not just about trash, landfills, or emissions
guidelines; it’s also about the separation of powers and the
limits of a court’s equitable discretion. We’re asked to
decide whether a district court abuses its discretion by
refusing to modify an injunction even after its legal basis has
evaporated and new law permits what was previously
enjoined. We answer affirmatively and reverse.

                                I.

    EPA is empowered to regulate “new” and “existing”
sources of pollution under the Clean Air Act. See 42 U.S.C.
§§ 7410, 7411. For any “new” sources, EPA shoulders
primary regulatory responsibility. See

But regulation of “existing” sources is a joint enterprise
between EPA and the states. See

1975 until 2019, EPA regulations for existing
sources of pollution required a series of actions upon the
issuance of any new emissions guidelines. Under these
regulations, states were given nine months to submit an
implementation plan after EPA publishes new emissions
              STATE OF CALIFORNIA V. USEPA                       7

guidelines. 40 C.F.R. § 60.23(a)(1). Within four months of
that deadline, EPA had to approve or disapprove of the plan.

a state failed to submit a plan of its own,
EPA had to issue a federal plan that would govern.

had six months from the state-submission
deadline to do so.

the emissions guidelines, and required
implementation plans, for municipal solid-waste landfills.
In 1996, EPA established emissions guidelines for such
landfills, requiring the installation of control technology if
they emitted more than 50 megagrams of certain air
pollutants in a year. 61 Fed. Reg. 9905, 9907 (Mar. 12,
1996). EPA amended those guidelines in 2016 to lower the
emissions threshold from 50 to 34 megagrams annually.
81 Fed. Reg. 59,276, 59,278 (Aug. 29, 2016).

    This amendment triggered the regulatory timeline for
action discussed above. See 40 C.F.R. § 60.30f(a) (2016).
First, each state was required to submit a plan by May 30,
2017.

EPA was required to approve
or disapprove of such plans by September 30, 2017. 81 Fed.
Reg. at 59,304. Finally, EPA was required to promulgate a
federal plan by November 30, 2017.

deadlines: September 30th and
November 30th came and went, but EPA failed to approve
any state plan or issue a federal plan. In May 2018, several
states brought suit alleging that EPA violated its own
regulations and sought an injunction compelling the agency
to promulgate a federal plan. 1


    1
     The plaintiffs are California, Illinois, Maryland, New Mexico,
Oregon, Pennsylvania, and Vermont, as well as the California Air
8             STATE OF CALIFORNIA V. USEPA

    Five months later, in October 2018, EPA began a
rulemaking process to amend the timing regulations at the
heart of the States’ suit. EPA’s stated goal was to bring its
regulatory deadlines for existing-source pollution in line
with statutory timelines for new-source pollution under
42 U.S.C. § 7410. 84 Fed. Reg. 32,520, 32,564 (July 8,
2019). EPA then moved for a stay of the litigation pending
resolution of the rulemaking process. The district court
refused to stay the litigation. As the case went on, EPA made
an additional attempt to continue the case, in light of the
government shutdown at the time, but its motion was denied.

    At the end of the day, the States prevailed. On May 6,
2019, the district court entered an injunction requiring EPA
to approve or disapprove of state plans by September 6,
2019. (EPA has already complied with this part of the
court’s injunction, so it is not at issue here.) The district
court also required EPA to issue a federal plan by November
6, 2019.

    About two months after the district court’s order, EPA
completed the rulemaking process, and the new timing
regulations were promulgated. 84 Fed. Reg. 32,520. Under
the new regulations, (1) states have three years after EPA
promulgates new emission guidelines to submit an
implementation plan, 40 C.F.R. § 60.23a(a)(1); (2) EPA
must take action to approve or disapprove of a state plan
within a year

(3) EPA must issue any
federal plan within two years

August
26, 2019, EPA finalized a regulatory amendment that made
the new timing regulations applicable to the 2016 emissions
guidelines. See 84 Fed. Reg. 44,547. Between these two

Resources Board and Plaintiff-Intervenor Environmental Defense Fund
(collectively, the “States”).
                STATE OF CALIFORNIA V. USEPA                            9

regulations, EPA’s deadline to promulgate a federal plan
was pushed out to August 30, 2021.

    EPA then confronted dueling deadlines: comply with the
district court’s injunction requiring a plan by November 6,
2019, or follow the new law establishing August 30, 2021,
as the deadline. 2 To resolve this dilemma, EPA filed a
motion under Federal Rule of Civil Procedure 60(b)(5)
requesting relief from the district court’s injunction. The
district court denied the motion but temporarily stayed its
injunction. EPA brought the appeal now before us and
moved for a stay of the district court’s injunction pending
appeal, which was granted by a motions panel.

   We review “for an abuse of discretion the district court’s
decision to deny a Rule 60(b) motion, and review de novo
any questions of law underlying the decision to deny the
motion.” Deocampo v. Potts, 

, 1140 (9th Cir.
2016).

                                   II.

   Although a court’s order is ordinarily final, the Federal
Rules of Civil Procedure provide some exceptions. Rule
60(b) enumerates when a party may obtain relief from a
court’s judgment or order. As relevant here, a court “may”
     2
       The new regulations are currently being challenged before the D.C.
Circuit. See New York v. EPA, No. 19-1165 (D.C. Cir.); Appalachian
Mountain Club v. EPA, No. 19-1166 (D.C. Cir.); Environmental Defense
Fund v. EPA, No. 19-1222 (D.C. Cir.); California v. EPA, 19-1227 (D.C.
Cir.). But no party has moved to stay the new regulations pending the
D.C. Circuit’s review, so they are undisputedly in effect. Given this
procedural posture, we assume, without deciding, that the new
regulations were duly promulgated so as to properly effectuate a change
in the law. We leave it to our colleagues on the D.C. Circuit to decide if
that’s actually true.
10            STATE OF CALIFORNIA V. USEPA

modify an injunction when “applying it prospectively is no
longer equitable.” Fed. R. Civ. P. 60(b)(5).

    If this sounds like a pliable standard, that’s because it is.
But this flexibility is a virtue, not a vice. Historically, what
made courts of equity different was that they could be
“flexible” and “adjust their decrees, so as to meet most, if
not all” of the exigencies to do justice for the parties. See
Joseph Story, W. H. Commentaries on Equity Jurisprudence
as Administered in England and America, Vol. 1 26–27
(C.C. Little & J. Brown eds., 1846). Such courts could
“vary, qualify, restrain, and model the remedy, so as to suit
to mutual and adverse claims, controlling equities, and the
real and substantial rights of all the parties.”

Indeed, equity exists “[b]ecause it is impossible that any
code, however minute and particular, should embrace or
provide for the infinite variety of human affairs, or should
furnish rules applicable to all of them[.]” Smith v. Davis,

, 590 (9th Cir. 2020) (en banc) (simplified).

    Rule 60(b)(5), and its malleable standard for modifying
an injunction, preserves the courts’ historical discretion over
injunctions. See Bellevue Manor Assocs. v. United States,

, 1252 (9th Cir. 1999) (“[T]he Rule codifies
the courts’ traditional authority, inherent in the jurisdiction
of the chancery, to modify or vacate the prospective effect
of their decrees.”) (simplified). But judicial discretion—
historically and now—is not unbridled. See 1 William
Blackstone, Commentaries on the Laws of England *62
(“[T]he liberty of considering all cases in an equitable light
must not be indulged too far, lest thereby we destroy all law,
and leave the decision of every question entirely in the breast
of the judge.”); Sys. Fed’n No. 91, Ry. Emps.’ Dep’t, v.
Wright, 

, 648 (1961) (“Railway Employees”)
(“[D]iscretion is never without limits and these limits are
              STATE OF CALIFORNIA V. USEPA                   11

often far clearer to the reviewing court when the new
circumstances involve a change in law rather than facts.”).
American equity jurisprudence, thus, reflected an “effort to
restrain the discretion courts of equity once wielded and to
roundly reject a view in which equity depends on the length
of each chancellor’s foot.” 

(Berzon,
J., dissenting) (simplified).

     EPA argues here that the district court abused its
discretion by forcing the agency to comply with the
injunction, despite the regulations having been amended to
extend the time to issue a federal plan to August 2021. The
States respond that courts must look beyond the new
regulations and conduct a broad, fact-specific inquiry into
whether modification prevents inequity.            They seek
affirmance since EPA hasn’t shown that it would be harmed
if forced to continue to abide by the court’s injunction. We
hold that the district court’s refusal to modify the injunction
here, when a change in law dissolved the legal basis for its
order, is an abuse of discretion.

                              A.

                              1.

    An unbroken line of Supreme Court cases makes clear
that it is an abuse of discretion to deny a modification of an
injunction after the law underlying the order changes to
permit what was previously forbidden. Consider first the
decision in Pennsylvania v. Wheeling & Belmont Bridge Co.,

(1855) (“Wheeling Bridge”). The Court had
ordered that an unlawful structure, a bridge, be destroyed
and enjoined from being rebuilt.

Congress later
established it as a postal route, thereby legalizing the bridge.

As fate would have it, the bridge was
destroyed in a storm, but the defendant still wanted it rebuilt.
12            STATE OF CALIFORNIA V. USEPA

Accordingly, the defendant sought modification of the
decree, which was granted. The Court explained, as a
“continuing decree,” if the law “has been modified by the
competent authority, so that the bridge is no longer an
unlawful obstruction, it is quite plain the decree of the court
cannot be enforced.”

For this conclusion, the
Court relied solely on the fact that the new law permitted
what was forbidden under the injunction—without engaging
in any balancing of the harms to the parties.

     Nearly a century later, the Court reiterated that a change
in law that alters a party’s legal duty requires modification
of an injunction that is based on superseded law. Prior to
1951, the Railway Labor Act prohibited union shops at
railroad companies—meaning non-union employees
couldn’t be coerced into joining a union at those companies.
Railway 

–44. Based on that law,
a railroad company, its unions, and its employees entered
into a consent decree that prevented the company from
treating non-union employees differently from union
employees.

In 1951, Congress amended the Act
to permit union shops.

a modification
request, the Court thought it “plain” that the decree should
be lifted.

Had the order been an injunction, rather
than a consent decree, the Court explained, “it would have
been improvident for the court to continue in effect th[e]
provision of the injunction prohibiting a union shop
agreement.”

But as a consent decree, the analysis
also required reviewing the law’s impact on the parties’
expectations. Nonetheless, based on Wheeling Bridge, the
Court expressly stated: “That it would be an abuse of
discretion to deny a modification of the present injunction if
it had not resulted from a consent decree we regard as
established.”

Again, it reached this conclusion
                STATE OF CALIFORNIA V. USEPA                          13

based only on the amendment to the law, without regard for
any other equitable factors.

    Finally, Agostini v. Felton, 

(1997), points
in the same direction. There, New York City was enjoined
from sending public school teachers to parochial schools.

Twelve years later, the City sought relief from the
injunction, arguing that Establishment Clause jurisprudence
had shifted so significantly that the prior cases supporting
the injunction were no longer good law.

The
Court agreed and held—without any analysis of other
equitable factors—that the City was entitled to relief from
the prospective injunction.

It explained that
“[a] court may recognize subsequent changes in either
statutory or decisional law” giving rise to an injunction, and
a “court errs when it refuses to modify an injunction or
consent decree in light of such changes.”

Thus,
Agostini confirms the equitable principle that when the law
changes to permit what was previously forbidden, it is an
abuse of discretion to not modify an injunction based on the
old law. 3

    We have likewise held that a shift in the legal landscape
that removes the basis for an order warrants modification of
an injunction. In California Department of Social Services
v. Leavitt, we considered an injunction issued against two

     3
        The States argue that Agostini did not just consider the
jurisprudential shift, but instead conducted a more fact-specific analysis
regarding the equitableness of modifying the injunction. It’s true that
the Court balanced the equities, but it did so only in response to the
dissent’s charge that the Court should have waited for a “better vehicle”
to examine the continued vitality of its prior Establishment Clause case.
See

(Ginsburg, J., dissenting) (objecting to the
majority’s “problematic use of Rule 60(b)” to announce the very change
in the law that justified modification of the injunction).
14           STATE OF CALIFORNIA V. USEPA

state agencies requiring them to comply with our
interpretation of a federal aid program. 

, 1027
(9th Cir. 2008). Congress later passed a law amending the
statutory basis of that program, which made clear that our
reading was wrong.

The agencies then moved
for relief from the injunction.

We upheld the
district court’s decision to modify the injunction because the
new statute had “removed the legal basis for the continuing
application of the court’s Order” and “[a] ‘change in law’ of
[that] type ‘entitle[d] petitioners to relief under Rule
60(b)(5).’”

(quoting 

).
To reach this conclusion we followed the Court’s lead—we
relied solely on the amended law without considering other
equitable factors. Elsewhere, we’ve recognized as settled
that “[w]hen a change in the law authorizes what had
previously been forbidden, it is an abuse of discretion for a
court to refuse to modify an injunction founded on
superseded law.” Toussaint v. McCarthy, 

,
1090 (9th Cir. 1986) (simplified).

    Other circuits have adopted similar approaches. See Am.
Horse Prot. Ass’n, Inc. v. Watt, 

, 1316, 1318–
19 (D.C. Cir. 1982) (holding that new law, by itself,
warranted modification of an injunction); Williams v. Atkins

, 463 (1st Cir. 1986) (holding modification is
warranted when the “legal predicate for [a] consent decree
has changed so substantially[,] that [the decree] is now
without a foundation in current federal law and it in part
conflicts with federal law”); Sweeton v. Brown, 

, 1166–67 (6th Cir. 1994) (en banc) (reversing the
district court and remanding with instructions to dissolve
injunctions imposed by a consent decree based on a change
in the law); Protectoseal Co. v. Barancik, 

,
1187 (7th Cir. 1994) (lifting of injunction was “mandated”
by Congress’s amendment to the Clayton Act). Once again,
                STATE OF CALIFORNIA V. USEPA                          15

in these cases, our sister circuits did not balance the harms
caused by modifying an injunction—instead they viewed the
revisions in the law as sufficient to require modification. 4

                                   2.

    The States contend that other precedent requires a broad,
fact-intensive inquiry into whether altering an injunction is
equitable, even if the legal duty underlying the injunction has
disappeared. We disagree.

      The States first point to Rufo v. Inmates of Suffolk County
Jail, 

(1992). While Rufo conducted this type of
analysis, that case is easily distinguishable. Instead of an
injunction, the Court was considering a consent decree,
which is a contract-like judgment that turns on the parties’
expectations. See

(consent decrees reflect “an
agreement of the parties and thus in some respects [are]
contractual in nature”). Here, the injunction was not entered
by consent, so there is no need to consider the parties’
expectations in submitting to the district court’s order. Cf.

(parties to a consent decree may “settle the dispute
. . . by undertaking to do more than the Constitution itself
requires” and “more than what a court would have ordered




    4
      But see Lubben v. Selective Serv. Sys. Local Bd. No. 27, 

, 650 (1st Cir. 1972) (“[A] change in applicable law does not provide
sufficient basis for relief under Rule 60(b)(5).”); De Filippis v. United
States, 

, 344 (7th Cir. 1977) (“The Kelley decision, even if
applicable, was not by itself such a subsequent event as to render
inequitable continued application of the injunction.”), overruled in part,
United States v. City of Chicago, 

(7th Cir. 1981) (en
banc).
16              STATE OF CALIFORNIA V. USEPA

absent the settlement”). 5 Indeed, five years after Rufo, the
Court in Agostini returned to an injunction and relied solely
on a jurisprudential shift to hold that the district court abused
its discretion in not modifying the 

. 6

    Nor does Bellevue Manor compel a different conclusion.
There, we considered whether a congressional amendment
and Court decision discredited the legal basis of an
injunction, but also went on to analyze additional factors that
supported the district court’s decision to modify an
injunction. See Bellevue Manor Assocs. v. United States,

, 1254 (9th Cir. 1999). But we did so because
of the unusual procedural posture: We had previously
remanded, in an unpublished disposition, for the district
court to consider a variety of factors under a prior (and more
stringent) test for modification.

After the district
court did so, and held that modification of the injunction was
warranted, the case came back up on appeal. Out of respect
     5
       The States correctly note that the Rufo analysis has been applied to
injunctions as well as consent decrees. But these cases involved
modification requests based on changed factual circumstances, not new
law. See Horne v. Flores, 

, 459, 462–63 (2009); SEC v.
Coldicutt, 

, 942 (9th Cir. 2001). Unsurprisingly,
modifications requested based on a change in facts necessitate a broad,
fact-intensive analysis. But this offers little guidance on a Rule 60(b)(5)
motion based on superseding law, as is the case here.

     6
       Nor do we find persuasive the States’ claim that various cases hold
that the Rufo standard applies to “all” modification requests under Rule
60(b)(5). The States rely on language yanked out of context. Our
discussion about the Rufo analysis applying to “all” requests for
modification simply refers to the fact that Rufo is not limited to
“institutional reform litigation.” Bellevue 

,
1255; see also United States v. W. Elec. Co., 

, 1203 (D.C.
Cir. 1995) (same); In re Matter of Hendrix, 

, 198 (7th Cir.
1993) (same). Such language does not mean that courts must conduct
the Rufo analysis in cases like this.
              STATE OF CALIFORNIA V. USEPA                    17

for the district court’s efforts, we considered the more
stringent factors—despite ultimately overruling the test—
and concluded that they weighed in favor of modification.

supported the district court’s
decision to grant modification, we dodged the question of
whether the change in the law alone warranted dissolution of
the injunction. Today we answer that question affirmatively.

     Finally, the States contend that the equities support their
view since the injunction here “remedied a single, long-past
legal violation by requiring one discrete task”—the issuance
of the federal plan. In contrast, they argue, the cases cited
above relate to continuing or ongoing injunctions. We see
no legal basis to treat this injunction any differently than one
that might be characterized as continuing, ongoing, or
indefinite. Indeed, it is the prospective effect (rather than the
continuing or ongoing nature) of an injunction that matters,
and which renders the injunction amenable to modification
based on new law. See, e.g., Landgraf v. USI Film Products,

, 274 (1994) (“relief by injunction operates in
futuro”); Wheeling 

–32
(distinguishing damages, which are immune from shifts in
the law, from injunctions, which are subject to changes in
the law); 11 Charles Alan Wright et al., Federal Practice and
Procedure § 2863, (3d ed. 2020) (distinguishing between
judgment with prospective effect and judgments “that offer
a present remedy for a past wrong”); Maraziti v. Thorpe,

, 254 (9th Cir. 1995) (holding that a judgment is
“prospective” within the meaning of Rule 60(b)(5) where it
is “executory”—e.g., compels a party to perform or restrains
it from performing a future act) (citing Twelve John Does v.
District of Columbia, 

, 1138 (D.C. Cir. 1988)).

    Accordingly, the weight of authority confirms that, once
the legal basis for an injunction has been removed, such that
18           STATE OF CALIFORNIA V. USEPA

the law now permits what was previously forbidden, it is an
abuse of discretion to not modify the injunction.

                              3.

    This caselaw accords with our understandings of equity.
As one leading commentator noted over 100 years ago, a
“court of equity never grants an injunction on the notion that
it will do no harm to the defendant if he does not intend to
commit the act in question. An injunction will not issue
unless some positive reasons are shown to call for it.”
2 William Blackstone, Commentaries on the Laws of
England and Additional Notes by Archibold, et al., *282
n.13 (George Sharswood ed. 1893) (discussing when
injunctions may issue to prevent “waste”). So, even if an
injunction appears to “do no harm to the defendant,” it
necessarily does so by its nature.

should require a “positive” basis for its imposition.

was discussing the need for a
sufficient factual predicate to issue an injunction, we think
the same reasoning requires an operative legal basis for
imposing and maintaining an injunction.

    Compelling EPA, then, to continue to adhere to an
injunction based on a legal duty that has since disappeared is
a harm in and of itself. EPA is now under no legal duty—
besides the court’s injunction—to promulgate a federal plan
by the now-stayed November 2019 date. Because EPA’s
new regulations have removed the legal basis for the court’s
deadline, we hold it an abuse of discretion to deny EPA’s
request for relief under Rule 60(b)(5).

                             B.

    Both sides warn that a ruling for the other side will
offend the Constitution’s separation of powers. We start
              STATE OF CALIFORNIA V. USEPA                  19

with the principle that no political branch of government can
reverse the final judgment of an Article III court. Because
the “‘judicial Power’ is one to render dispositive
judgments,” Congress cannot retroactively reverse a final
judgment. Plaut v. Spendthrift Farm, Inc., 

, 219
(1995). And if Congress can’t do it, an executive agency
can’t either.

    But it is only final judgments, not injunctive relief, that
cannot be disturbed without offending the separation of
powers. See, e.g.

(distinguishing retroactive
application of a new law to cases while on appeal from
judgments that have achieved “finality”). Cases involving
new laws that “altered the prospective effect of injunctions
entered by Article III courts,” such as Wheeling Bridge,
“distinguish themselves” from Plaut.

Indeed, this
distinction was made explicit five years later, when the Court
held that, “[p]rospective relief under a continuing, executory
decree remains subject to alteration due to changes in the
underlying law” without raising a separation of powers
concern. Miller v. French, 

, 344, 347 (2000);
see also 

–74 (“When the
intervening statute authorizes or affects the propriety of
prospective relief, application of the new provision is not
retroactive” because “relief by injunction operates in
futuro”); Mount Graham Coal. v. Thomas, 

, 556–
57 (9th Cir. 1996) (rejecting a separation of powers
challenge based on Plaut’s distinction between legislation
that “altered the prospective[ness] . . . of injunctions” from
impermissible attempts to retroactively interfere with a final
judgment); 

(rejecting the argument
that post-injunction change to the law constituted
impermissible “retroactive application” of a statute because
“Congress’s power to define the scope of statutory
entitlements going forward is plenary”).
20           STATE OF CALIFORNIA V. USEPA

    Respect for the separation of powers also makes it
irrelevant that the change in regulations in this case was
brought about by EPA itself. EPA’s dual role as rulemaker
and defendant here is a natural consequence of a lawsuit
based solely on EPA’s own regulations.             EPA is
undisputedly the “competent authority” to modify the law at
issue. See Wheeling 

. As such, we see
no reason why a coequal branch should be prejudiced when
moving for Rule 60(b)(5) relief simply because it has the
authority to amend its regulations. Cf. NAACP v. Donovan,

, 71–72 (D.C. Cir. 1984) (holding that the
Department of Labor could implement new regulations even
after a district court order required compliance with prior
regulations).

    Ultimately, we see a greater threat to the separation of
powers by allowing courts to pick and choose what law
governs the executive branch’s ongoing duties. There is a
word for picking the law that determines a party’s future
conduct: legislation (or in this case, rulemaking). Permitting
a court to make an equitable determination about which law
an executive agency should follow going forward, without
any other legal basis, risks undue expansions of the judicial
role. See, e.g., The Federalist No. 78, at 284 (Hamilton)
(David Wootton ed., 2003) (the legislature prescribes the
“rules by which the duties and rights of every citizen are to
be regulated” but the judiciary “may truly be said to have
neither [f]orce nor [w]ill, but merely judgment”); The
Federalist No. 47, at 234 (J. Madison) (David Wootton ed.,
2003) (“Were the power of judging joined with the
legislative, the life and liberty of the subject would be
exposed to arbitrary control, for the judge would then be the
legislator. Were it joined to the executive power, the judge
might behave with all the violence of an oppressor.” (quoting
Montesquieu, Spirit of the Laws, Vol. I, 181) (emphasis
              STATE OF CALIFORNIA V. USEPA                    21

omitted)). It is only “[t]he interpretation of the laws”—not
the selection of which laws should apply going forward—
that “is the proper and peculiar province of the courts.” The
Federalist No. 

(emphasis added).

                              III.

    We therefore hold that when a district court reviews an
injunction based solely on law that has since been altered to
permit what was previously forbidden, it is an abuse of
discretion to refuse to modify the injunction in the light of
the changed law. 7 As courts, we are empowered to decide
“[c]ases” and “[c]ontroversies.” See U.S. Const. art. III, § 2.
We have no power to pick and choose what law the parties
before us ought to follow. Yet that is exactly what a court
does when it refuses to modify an injunction that relies on a
superseded law.

    For the foregoing reasons, we REVERSE and
REMAND with instructions for the district court to modify
the injunction consistent with this opinion.




    7
      Nothing in our opinion today speaks to when modification is
required for consent decrees, which are not at issue here.