JOHN R. TUNHAIM, District Judge.
This is an action for declaratory judgment and injunctive relief pursuant to the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq. and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500 et seq. Plaintiffs in this matter are two nonprofit organizations — WaterLegacy and the Minnesota Center for Environmental Advocacy ("MCEA") — that have an interest in Minnesota's water quality generally and the Fond Du Lac and Grand Portage Bands of the Lake Superior Chippewa ("the Bands") that have an interest in Minnesota's water quality in the area at issue. Defendants are the United States Environmental Protection Agency, the branch of the agency that reviews water quality decisions for Minnesota (Region 5), and various officers of that agency (collectively, "the EPA"). Plaintiffs challenge the EPA's December 2012 approval of a water quality standards variance for a commercial-scale iron nugget production facility located in Hoyt Lakes, Minnesota, owned by intervenor Mesabi Nugget Delaware, LLC ("Mesabi Nugget").
On March 10, 2014, the EPA filed an unopposed motion to vacate its approval of the variance and remand the matter to the agency for further consideration. Three days later, Mesabi Nugget moved to intervene for the limited purposes of delaying remand for thirty days to allow it to discuss the issue with the EPA and preventing the variance from being vacated during the period of remand. Because the Court concludes that Mesabi Nugget has satisfied the requirements for intervention it will grant Mesabi Nugget's request for intervention. The Court will also grant the EPA's unopposed motion for remand, but will remand the matter without vacating the December 2012 variance approval.
Under the CWA, Mesabi Nugget is prohibited from discharging any pollutant into waters of the United States from a point source, such as its facility, unless the discharge is authorized by a permit under the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C. §§ 1311(a), 1342(a)(1). The EPA has delegated to the Minnesota Pollution Control Agency ("MPCA") the authority to issue NPDES permits for discharges of pollutants within Minnesota that comply with or are more stringent than federal permit conditions. See In re Alexandria Lake Area Sanitary Dist. NPDES/SDS Permit No. MN0040738, 763 N.W.2d 303, 308-09 (Minn. 2009) (citing Minn. Stat. § 115.03, subd. 5; 40 C.F.R. § 123.25(a)); see also 33 U.S.C. § 1342(b). An NPDES permit must include conditions that will result in compliance with state water quality standards. 33 U.S.C. § 1342(a)(1); 40 C.F.R. § 122.44(d). The EPA is required to review and either approve or disapprove any new or revised state water quality standards promulgated by the MPCA before they can become effective. 33 U.S.C. § 1313(c); 40 C.F.R. § 131.5. Variances authorizing discharges from individual facilities that exceed state water quality standards are considered modifications to state water quality standards, and therefore any variances granted by the MPCA must be submitted to the EPA for approval or disapproval. See 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.21; see also 40 C.F.R. § 124.62.
Mesabi Nugget's iron production facility was originally governed by an NPDES permit issued in June 2005 which granted the facility variances from Minnesota water quality standards for certain types of discharges for a period of five years. (Am. Compl. ¶¶ 76-77, Nov. 27, 2013, Docket No. 23; Administrative Record ("R.") at 654, Nov. 15, 2013, Docket No. 20.) The 2005 variance expired on June 30, 2010, and Mesabi Nugget voluntarily ceased discharging from the facility because the MPCA had not extended its water quality variances. (Am. Compl. ¶ 85; R. at 64.) In June 2010 Mesabi Nugget applied to the MPCA for another variance, requesting "a continuation of the variances from the water quality standards for the 5-year term of the reissued permit." (R. at 654.)
On January 30, 2012, the MPCA provided public notice of its intent to issue Mesabi Nugget a variance from compliance with Minnesota water quality standards. (Am. Compl. ¶ 88; R. at 80.) Prior to and during this public comment period, all Plaintiffs in the present lawsuit submitted comments expressing opinions and concerns regarding the content and legality of the proposed variance. (R. at 8-9, 80; Am. Comp. ¶ 117; Exhibit List, Ex. A, Mar. 20, 2014, Docket No. 38.)
On October 23, 2012, the MPCA Citizens' Board approved the MPCA's proposed findings of fact, conclusions of law, and order approving the issuance of an NPDES permit to Mesabi Nugget containing a variance from Minnesota water quality standards. (R. at 1370-90.) The MPCA then requested approval of the variance from the EPA. (R. at 41.) On December 27, 2012, the EPA approved the variance granted by the MPCA for Mesabi Nugget's facility through August 1, 2021. (R. at 3-24.)
WaterLegacy, the MCEA, and the Bands each filed separate petitions appealing the EPA's variance approval to the EPA Environmental Appeals Board. (Compl., Ex. B at 2-3, June 3, 2013, Docket No. 1.) Both the EPA and Mesabi Nugget filed motions to dismiss the petitions for lack of jurisdiction. (Id., Ex. B at 3.) On March 19, 2013, the Board granted the motions to dismiss, finding that it lacked jurisdiction to review the EPA's approval of a water quality standards variance issued pursuant to Section 303(c) of the CWA and 40 C.F.R. part 131. (Id., Ex. B at 7.) The Board explained that review of the EPA's decision could instead be properly sought in federal district court pursuant to the Administrative Procedure Act. (Id.)
On June 3, 2013 WaterLegacy filed a complaint in this Court against the EPA challenging its December 27, 2012 approval of the variance, and requesting declaratory judgment and injunctive relief. (Compl., June 3, 2013, Docket No. 1.) The Bands and the MCEA initiated separate lawsuits against the EPA seeking identical relief. (See Civ. No. 13-1324, Compl., June 3, 2013, Docket No. 1; Civ. No. 13-1393, Compl., June 10, 2013, Docket No. 1.) The EPA filed an answer in each of the cases disputing the allegations that its approval of the variance was arbitrary and capricious and asserting as defenses that the complaints failed to state claims upon which relief could be granted. (Answer, Aug. 27, 2013, Docket No. 13; Civ. No. 13-1324, Answer, Aug. 27, 2013, Docket No. 12; Civ. No. 13-1393, Answer, Aug. 27, 2013, Docket No. 14.)
On August 27, 2013, the three cases were consolidated. (Order, Aug. 27, 2013, Docket No. 12.) Pursuant to stipulation, the Plaintiffs filed a single amended complaint in the present action on November 27, 2013. (Order, Nov. 26, 2013, Docket No. 22; Am. Compl.) The EPA was not "required to file an amended answer in order to preserve [its] denial of all claims made by plaintiffs." (Id. ¶ 2.)
On March 10, 2014, the EPA brought an unopposed motion for a voluntary remand with vacatur. (Defs.' Unopposed Mot. for Voluntary Remand with Vacatur, Mar. 10, 2014, Docket No. 26.) In the motion the EPA explains:
(Id. ¶ 3.) The EPA notes that "[w]hile vacatur is not always appropriate when an agency requests a voluntary remand, as noted above, given EPA's intention to disapprove the variance request on remand, EPA requests that the Court vacate the December 27, 2012, Variance Approval Decision prior to remanding the matter to EPA." (Id. ¶ 4.) Finally, with respect to resolution of the pending case, the EPA states that because the motion for remand and vacatur is unopposed "it is the parties' intention to file a stipulation of dismissal under Fed. R. Civ. P. 41 after the Court grants this motion." (Id. ¶ 5.)
The day after the motion for remand was filed, Mesabi Nugget delivered a letter to United States Magistrate Judge Leo I. Brisbois indicating that its "ability to operate will be affected by EPA's motion" and requesting "that the court delay its action on the EPA's motion" for several days to allow Mesabi Nugget the opportunity to prepare "a response to the motion seeking limited relief." (Letter, Mar. 12, 2014, Docket No. 28.)
On March 13, 2014, Mesabi Nugget brought a motion for intervention and "related relief." (Mot. for Intervention & Related Relief, Mar. 13, 2014, Docket No. 29.) In the motion, Mesabi Nugget seeks leave "to intervene in the above-entitled lawsuit for the purpose of opposing EPA's March 10, 2014 Motion for Voluntary Remand." (Id. at 2.) Mesabi Nugget also requests that the Court
(Id.) Finally, Mesabi Nugget requests that "[t]o the extent that an order remanding the Variance is issued in the future" the Court "abstain from vacating the Variance while the remand proceedings take place." (Id.; see also Mem. of Law in Supp. of Mot. to Intervene at 2, Mar. 13, 2014, Docket No. 31.)
Mesabi Nugget seeks to intervene as a matter of right, and in the alternative seeks permissive intervention.
On timely motion, the court must permit anyone to intervene who:
Fed. R. Civ. P. 24(a). A party seeking mandatory intervention under Rule 24(a) must establish that "(1) it has a recognized interest in the subject matter of the litigation; (2) the interest might be impaired by the disposition of the case; and (3) the interest will not be adequately protected by the existing parties." S.D. ex rel. Barnett v. U.S. Dep't of Interior, 317 F.3d 783, 785 (8
The parties do not dispute, and the Court finds, that Mesabi Nugget meets the criteria for intervention as of right or permissive intervention due to its interest in the variance and the fact that its interest in maintaining the variance is not adequately represented by the parties to the litigation. Plaintiffs do, however, oppose Mesabi Nugget's motion for intervention on a number of other bases, including that the motion contains fatal procedural flaws, is moot in light of the EPA's unopposed motion for remand, and is untimely. The Court will address each of these arguments in turn.
Plaintiffs first challenge Mesabi Nugget's motion for intervention on the basis that "[i]t is not even clear whether Mesabi seeks to intervene as a plaintiff or defendant." (Joint Response to Mesabi Nugget's Mot. to Intervene at 6, Mar. 20, 2014, Docket No. 37.) Courts have "recognized that the resolution of a Rule 24 motion requires flexibility" and engage in "a practical analysis of the facts and circumstances of each case" even where a motion to intervene is not "conventional" and does not fit neatly into the contours of "the analytical framework established by Rule 24." United States v. Petters, Civ. No. 08-5348, 2008 WL 5234527, at *2 (D. Minn. Dec. 12, 2008) (internal quotation marks omitted) (granting a motion to intervene for the limited purpose of lifting the stay of litigation because "a practical, commonsense application of Rule 24 suggests intervention for th[at] limited purpose . . . is appropriate here"). In keeping with these principles, courts have consistently allowed intervention for a limited purpose, such as intervention to challenge a protective order, see Jessup v. Luther, 227 F.3d 993, 999 (7
Here, Mesabi Nugget clearly seeks intervention for a limited purpose and therefore need not specify whether it seeks intervention as a plaintiff or defendant. In other words, Mesabi Nugget does not wish to file claims, defend against the allegations in the amended complaint, or engage with the merits of the lawsuit. Instead, Mesabi Nugget seeks to intervene for the limited purpose of addressing issues that are ancillary to the merits of the lawsuit. Mesabi Nugget does not dispute that the case — which challenges the propriety of the EPA's December 27, 2012 approval of the variance — should be remanded for reconsideration by the EPA, but brings its motion to intervene solely to delay entry of the unopposed motion for remand for a period of thirty days and to challenge the collateral issue of whether the variance should be vacated during the pendency of the remand proceedings. Plaintiffs have identified, and the Court has found, no authority that would prevent Mesabi Nugget from intervening for the limited purposes it has identified. Instead, applying a flexible and commonsense understanding of Rule 24, the Court concludes that Mesabi Nugget's failure to seek intervention as either a party plaintiff or party defendant does not provide a basis to deny its motion.
Relatedly, Plaintiffs argue that Mesabi Nugget's motion to intervene is improper under Rule 24 because it fails to include a pleading. Plaintiffs contend that "before the Court can consider the merits, Mesabi must conform its Motion by filing a pleading and then re-noticing the parties." (Joint Response to Mesabi Nugget's Mot. to Intervene at 6.)
Rule 24 requires that a motion for intervention "state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought." Fed. R. Civ. P. 24(c). But the Eighth Circuit has held that failure to comply with this requirement is not fatal to a motion for intervention where a proposed intervenor submits "a statement of interest explaining why it seeks intervention." United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 834 (8th Cir. 2009). Such a statement of interests satisfies Rule 24's requirement of an accompanying pleading if "it provides sufficient notice to the court and the parties of [the intervenor]'s interests." Id.
Here, the Court concludes that Mesabi Nugget's brief in support of its motion to intervene provides sufficient notice to the Court and the parties of its interests and the basis for its motion to satisfy Rule 24(c). In its brief Mesabi Nugget has clearly identified its interest in the variance and its rationale for seeking a thirty-day meet and confer period and challenging the vacatur of the variance. Indeed, given Mesabi Nugget's request for limited intervention, which does not seek to challenge the allegations in the Amended Complaint or assert independent claims, the briefing submitted in connection with Mesabi Nugget's motion provides far more relevant information to the Court and the parties than would a formal pleading. Furthermore, the Court notes that Plaintiffs do not seek denial of Mesabi Nugget's motion due to the failure to file a pleading, instead Plaintiffs merely request refiling of the instant motion. Given the important timing concerns of the remand identified by Plaintiffs, the Court concludes that requiring Mesabi Nugget to refile its motion would elevate form over substance and merely serve to delay the relief sought by Plaintiffs. Accordingly, because Mesabi Nugget's brief meets the standards of Rule 24(c)'s pleading requirement, by apprising the Court and the parties of the purpose and scope of its proposed intervention, the Court will consider the motion on the merits, despite the lack of a formal pleading.
Plaintiffs also contend that Mesabi Nugget's motion is improper because it offers argumentation that is responsive to the unopposed motion for remand, arguing that "[a] motion to intervene can only deal with whether a party is entitled to appear in a case" and "Mesabi is not entitled to proffer a response to the Unopposed Motion until and unless it is granted intervention." (Joint Response to Mesabi Nugget's Mot. to Intervene at 6.) Although Plaintiffs do not contend that this "impermissible" inclusion of a response to the motion for remand is a basis to deny Mesabi Nugget's motion, they request that the motion be "conformed and the parties re-noticed" before the Court hears the motion. (Id. at 7.)
Plaintiffs have cited, and the Court has found, no authority for the proposition that a proposed intervenor cannot include in its motion for intervention arguments against a pending motion that the intervenor would make if intervention was allowed. Indeed, where, as here, Mesabi Nugget seeks intervention for the limited purpose of challenging a pending motion it would make little sense for its motion to intervene
Plaintiffs next argue that the motion to intervene must be denied because, in light of the filing of the unopposed motion for remand, no case or controversy exists. Specifically Plaintiffs argue "[n]ow that the EPA has formally changed course, the Court lacks jurisdiction to adjudicate the `present or future legality' of the Variance Decision because there is no longer a case or controversy between the existing parties." (Joint Response to Mesabi Nugget's Mot. to Intervene at 11.)
"`The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy.'" Ringo v. Lombardi, 677 F.3d 793, 796 (8
Because the present case remained open when Mesabi Nugget filed its motion to intervene, neither this case, nor the motion, is moot. Although the EPA had filed an unopposed motion requesting remand and vacatur prior to the filing of the motion for intervention, the Court had not yet ruled on that motion. Therefore, currently before the Court are several cases or controversies that are sufficient to satisfy the jurisdictional requirements of Article III. First, by filing a motion for intervention prior to the entry of final judgment in the case, Mesabi Nugget put at issue "the merits and the propriety of intervention." Robert F. Booth Trust, 687 F.3d at 318. Plaintiffs oppose Mesabi Nugget's motion for intervention, indicating that the issues raised in that motion "are live issues." Id. Second, even if Mesabi Nugget had not filed a motion for intervention, the propriety of remand and vacatur remains an issue before the Court. Contrary to Plaintiffs' suggestion, the fact that they do not oppose the EPA's motion for remand does not mean that the Court is bound by the parties' agreement as to the propriety of remand and vacatur. See Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 417-18 (6
As support for its position that the case is moot, Plaintiffs rely upon Save Greers Ferry Lake, Inc. v. Dep't of Defense, 255 F.3d 498, 501 (8
Both motions for intervention as of right and for permissive intervention must be timely, see Fed. R. Civ. P. 24, and "the timeliness of a motion to intervene is a threshold issue," Ritchie Special Credit Invs., Ltd., 620 F.3d at 832. Whether a motion to intervene is timely "is determined by considering all the circumstances of the case" and "[n]o ironclad rules govern this determination." Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d 994, 998 (8
Plaintiffs' primary argument regarding timeliness is that Mesabi Nugget's motion to intervene is untimely because the parties have "agreed to a full resolution" of the case, in the form of the unopposed motion for remand, making this "the
Here, although the parties to the litigation have reached a resolution in the form of a remand, the parties have engaged in no discovery or motion practice and no proceedings regarding the merits of the litigation have occurred. See Midwest Realty Mgmt. Co. v. City of Beavercreek, 93 F. App'x 782, 786 (6
Furthermore, where, as here intervention is sought for a limited purpose, courts have analyzed the issue of timeliness narrowly, as the period of time elapsing between the event giving rise to the limited intervention and the motion to intervene. See Sackman, 167 F.R.D. at 20 (noting that because "these Rule 24 motions are for the limited purpose of objecting" to a discovery order and were filed ten days after the entry of that order "any delay is negligible"); see also In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 255 F.R.D. 308, 315 (D. Conn. 2009) ("In cases where parties have sought intervention for the limited purpose of modifying a protective order, the requirement of timeliness is quite broad. Where a party seeks intervention to modify a protective order and not to participate on the merits, courts have permitted intervention even where the parties to the underlying litigation have settled their dispute." (citation omitted)). As explained above, Mesabi Nugget seeks intervention for the limited purpose of challenging the type of remand that occurs (with or without vacatur), and does not seek to intervene for purposes of arguing the merits of the case. Mesabi Nugget filed its motion to intervene only three days after the filing of the remand motion to which it objects. Therefore, the Court concludes that, although the parties have reached tentative resolution of the case, the extent of progress in the litigation weighs only slightly against intervention.
It is undisputed that Mesabi Nugget had knowledge of this very highly publicized litigation as soon as, or shortly after, it was filed in June 2013. (See, e.g. Exhibit List, Exs. B-C (news coverage of the lawsuit).) It is also undisputed that Mesabi Nugget has been aware of the position of the Plaintiffs in this matter for several years, as they participated actively in opposing the approval of the variance sought in June 2010. But Mesabi Nugget argues that it did not know or have reason to know that the EPA would cease to defend its December 2012 approval of the variance until the motion for remand was filed. Up until that point — including before the EPA Environmental Appeals Board and in its answers to the Plaintiffs' complaints in the present case — the EPA's position was that it had properly approved Mesabi Nugget's variance. Therefore, Mesabi Nugget would not have known prior to the filing of the motion for remand that remand of the variance decision would be with vacatur. Because Mesabi Nugget seeks to intervene for the limited purpose of challenging the type of remand, the Court concludes that it did not have a reason to know that its interests were not being represented by the EPA until the motion for remand was filed. See Midwest Realty Mgmt. Co., 93 F. App'x at 787-88 ("The proposed intervenors undoubtedly knew that this litigation could affect their legal interests from the beginning. However, it was not until there was reason to believe their interests were not being adequately represented by the City that they would have been alerted to the need to seek intervention. The mere pendency of settlement negotiations cannot be deemed to trigger such awareness. Only notice of objectionable terms in a proposed settlement will ordinarily suffice." (citation omitted)); see also Carpenter, 298 F.3d at 1125 ("[U]ntil parties have notice that the government may not be representing their interests, parties are entitled to rely on the presumption that the government is representing their interests."). Therefore, the Court finds that this factor weighs in favor of intervention.
Finally, Plaintiffs argue that they will be prejudiced by intervention because "the existing parties will be subjected to litigation costs and burdensome delays . . . all so Mesabi can block the case's resolution" and that the parties would be prejudiced by the Court's refusal "to allow the EPA to voluntarily reconsider the Variance Decision." (Joint Response to Mesabi Nugget's Mot. to Intervene at 15, 16.) But Plaintiffs' arguments regarding prejudice misconstrue the scope and purpose of Mesabi Nugget's motion for intervention. It is true that courts have denied motions to intervene as untimely where the motion threatened to jeopardize the parties' settlement agreement. See United States v. Alisal Water Corp., 370 F.3d 915, 922 (9
Neither Plaintiffs nor Mesabi Nugget dispute that remand to the EPA for reconsideration of the variance approval is appropriate in this case, and the Court has found no evidence of bad faith or untimeliness on the part of the agency that would render remand inappropriate. See Citizens Against Pellissippi Parkway Extension, Inc., 375 F.3d at 417-18. Mesabi Nugget does, however, challenge that such remand be with vacatur as requested in the EPA's motion.
Even where the Court orders remand, it retains discretion to determine whether the agency action or decision should remain in effect while the agency seeks to correct the action or decision. See Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005). Whether an agency's decision should be vacated on remand "depends on the seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed." Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002) (internal quotation marks omitted).
As an initial matter, the Court notes that there is a split in the case law regarding whether a court has the authority to order vacatur during the pendency of remand where, as here, a court has made no determination on the merits of the agency's decision. See Carpenters Indus. Council v. Salazar, 734 F.Supp.2d 126, 135-36 (D.D.C. 2010) (concluding that because the court did not make "a determination of the merits as a result of the federal defendants' confession of legal error" it was without "the authority to grant the federal defendants' request for vacatur"). But see Center For Native Ecosystems v. Salazar, 795 F.Supp.2d 1236, 1241-43 (D. Colo. 2011) (noting that courts may grant vacatur even where they have not considered the agency action on the merits). As explained below, the fact that the Court has not considered the variance approval on the merits in even the most general sense is certainly relevant to a determination of vacatur. However, for purposes of this Order, the Court will assume, without deciding, that it has the authority to vacate the EPA's variance approval, because it concludes that vacatur is not warranted under these circumstances.
With respect to the first prong of the vacatur inquiry — the seriousness of the deficiencies in the agency action — vacatur is appropriate where "the Court has significant doubts as to `whether the agency chose correctly'" in taking the action. Am. Petroleum Inst. v. Johnson, 541 F.Supp.2d 165, 185 (D.D.C. 2008) (quoting Int'l Union, United Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 967 (D.C. Cir. 1990)). Courts have vacated, for example "when the agency has not responded to empirical data or to an argument inconsistent with its conclusion." Comcast Corp. v. F.C.C., 579 F.3d 1, 8 (D.C. Cir. 2009); see also Am. Petroleum Inst., 541 F. Supp. 2d at 185 (remanding with vacatur where "the deficiencies in EPA's explanation strongly suggest that the agency failed to engage in reasoned decisionmaking"). Even where a court has not expressly considered a decision on the merits, but instead remands an agency decision at the request of the parties, the parties can still provide information to the court regarding the propriety of the remand. See Center For Native Ecosystems, 795 F. Supp. 2d at 1242 (noting that courts may grant vacatur even where they have not considered the agency action on the merits, but nonetheless examining the contentions of the parties regarding the deficiencies with the remanded rule in determining whether vacatur was appropriate).
Here, although the EPA has indicated that it intends to disapprove the variance request on remand, it has proffered no explanations for its action nor has it provided the Court with any reasons why its original approval of the variance was not the product of reasoned decisionmaking, or was otherwise arbitrary and capricious. Frito-Lay, Inc. v. U.S. Dep't of Labor, Civ. No. 12-1747, 2014 WL 2027525, at *8 (N.D. Tex. Feb. 11, 2014) (noting that "[v]acatur is rarely mentioned in cases granting a motion for voluntary remand" and that "[w]ithout a finding that the Final Order is arbitrary and capricious, or otherwise unlawful, a ruling vacating or setting aside the Final Order is premature"). Therefore the Court is unable to conclude that it has significant doubts as to whether the EPA chose correctly when it initially approved the variance, and this factor weighs against vacatur.
With respect to the second prong of the vacatur inquiry — the disruptive consequences of vacatur — the Court finds that this factor also weighs against vacatur. The EPA has represented to the Court that vacatur of the variance approval would have no effect on Mesabi Nugget's current operations, as it does not currently discharge under its existing permit until at least September 1, and would, in any case, be shielded from liability for actions taken that are consistent with its existing permit until the EPA actually reverses its approval of the variance and a new permit is issued. Courts have typically declined to remand with vacatur where vacatur would not actually have the effect of undoing the agency action. See Sugar Cane Growers, 289 F.3d at 97-98 (remanding without vacatur when farmers had already plowed their crops in response to the administrative rule in question). Until the EPA reverses the approval of the variance and a new permit is issued, vacatur would have no discernable effect, and the Court will therefore decline to order it. Additionally, the Court notes that the EPA has stated that it "intends to make its decision on remand within 30 days after the Court remands this matter to the EPA." (EPA's Response to Mesabi Nugget's Mot. to Intervene and for Related Relief at 6.) Thus, the Court is not presented with a situation where, in the absence of vacatur, an erroneous rule will stay in place for a long period of time during remand and adversely affect the environment. See Natural Resources Defense Council v. U.S. E.P.A., 676 F. Supp. 2d at 316 (vacating after determining that the pesticide at issue "was not lawfully registered" and finding it "more appropriate to vacate the registration" which would result in the removal of the pesticide from the market during remand). Because the Court has no basis upon which to assess the deficiencies of the EPA's variance approval and vacatur will not serve to change the status quo during the pendency of the remand, the Court will grant the EPA's motion for remand, but will deny its request for vacatur. The Court notes that this denial is without prejudice, and should the circumstances of remand become different than currently represented by the EPA, any party is entitled to reapply to the Court for vacation of the variance approval.
Based on the foregoing, and all the files, records, and proceedings herein,
1. Defendants' Unopposed Motion for a Voluntary Remand With Vacatur [Docket No. 26] is
2. Mesabi Nugget's Motion for Intervention and Related Relief [Docket
No. 29] is
