Last week,
Judge Donald Malloy vacated the Environmental Assessment for
the Bull Mountains Mine No. 1 in central Montana. Judge Malloy had
already vacated the EA once; when the 9th Circuit
affirmed Judge Malloy's decision that the EA violated NEPA,
it remanded the case for new findings as to whether vacatur would
be appropriate.
The default rule is that when agency action has been struck
down, vacatur follows. However, the court may choose not to vacate,
particularly if the agency's errors seem curable and if the
consequences of vacatur would be substantial.
There are two important issues in the decision. The first is
that, while the government opposed vacatur, it had already decided
that the proposed project now warrants preparation of an
environmental impact statement. To Judge Malloy, this decision by
the Office of Surface Mining Reclamation and Enforcement was
tantamount to an admission that the errors in the EA could not be
cured. I get that, but it seems to
