A blog on practice in the Nation’s second-most powerful court

Can an agency un-moot a case by announcing a new rulemaking?

A new D.C. Circuit decision begins with this “well-settled principle”: “when an agency has rescinded and replaced a challenged regulation, litigation over the legality of the original regulation becomes moot.” No. 17-5260, Alaska v. U.S. Dep’t. of Ag. (Nov. 16, 2021) (citation omitted).  In fact, “[f]inding a case plainly moot when the agency order has been superseded by a subsequent … order is so routine that our court usually would handle such a matter in an unpublished order.”  (Citation omitted).

But what if the agency says it plans to change its mind in a new rulemaking?  Would that open the door to the “voluntary cessation” doctrine, which prevents a litigant from mooting a controversy by stopping the complained-of activity only to remain free to revert to “his old ways”?

The answer, the court held, was no.  An agency announcement of a new rulemaking does not un-moot a case.  Here’s the heart of the court’s explanation (note that the case concerned the “Tongass exemption” to the agency’s “Roadless Rule,” which forbade new roads on certain lands in Alaska):

We cannot presume that any such future rulemaking will repeal the Tongass exemption in toto. Doing so would be inconsistent with the purpose of notice-and-comment rulemaking under the

Administrative Procedure Act, see, e.g., Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Make the Road N.Y. v. Wolf, 962 F.3d 612, 634 (D.C. Cir. 2020), and with the function of environmental impact statements under NEPA, see, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52 (1989); Am. Rivers v. FERC, 895 F.3d 32, 37-38 (D.C. Cir. 2018); Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1263-64 (10th Cir. 2011).

Moreover, to determine whether the Roadless Rule will be reapplied to the Tongass would require us to speculate about future actions by policymakers. The Rule itself has been controversial from its inception. See Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 979-81 (9th Cir. 2015) (en banc) (M. Smith, J., dissenting). New notice-and-comment rulemaking, and new environmental assessments, take time. Intervening events, such as elections or changes in policy priorities, bearing on these processes are unpredictable. The content of any future regulation is currently unknowable.

If, after another round of notice and comment and a fresh environmental impact statement, the Agriculture Department retracts the Tongass exemption, that new regulation “will be reviewable at that time” in light of a new record. Nat’l Wildlife Fed’n, 839 F.2d at 742. But in the meantime we will not take the “wholly novel” action of “review[ing] regulations not yet promulgated.” EPA v. Brown, 431 U.S. 99, 104 (1977) (per curiam).

In short, agencies get the benefit of the doubt, even if they say they plan to revert to their “old ways.”