Mootness in challenges to rescinded rules
Mootness in Challenges to Rescinded Rules
What is Mootness?
Mootness is a justiciability doctrine in U.S. law under Article III of the Constitution, which requires an actual, ongoing case or controversy. If the issue is no longer “live” — for example, if a challenged rule is rescinded or the underlying problem resolved — the case is moot, and courts generally dismiss it.
Mootness in the Context of Rescinded Agency Rules
When an agency rescinds, repeals, or otherwise withdraws a rule that is being challenged in court, defendants often argue that the challenge is moot because the rule no longer has legal effect.
However, courts recognize exceptions where a case may remain justiciable despite rescission, including:
Capable of repetition, yet evading review
Collateral consequences remain even after rescission
Voluntary cessation doctrine — agency cannot moot a case simply by rescinding a rule temporarily
Why Mootness Matters Here
Courts avoid issuing advisory opinions on rules that no longer apply.
But they also ensure agencies do not evade judicial review by temporarily rescinding problematic rules.
Detailed Explanation with Landmark Cases
1. Friends of the Earth, Inc. v. Laidlaw Environmental Services (2000), 528 U.S. 167
Facts: Plaintiffs challenged a pollution discharge permit; later, the permit expired.
Holding: The Supreme Court held the case was not moot because the defendant could resume the challenged conduct, and the issue was capable of repetition yet evading review.
Significance: Established that voluntary cessation does not moot a case if the defendant could resume harmful conduct.
2. Environmental Defense Fund, Inc. v. EPA, 852 F.2d 1316 (D.C. Cir. 1988)
Facts: EPA rescinded an air pollution rule that was challenged.
Holding: The court held the case was moot because the rule was rescinded and the rescission was not a sham to avoid judicial review.
Principle: Mootness applies if rescission is genuine and no ongoing harm exists.
3. United States v. W.T. Grant Co., 345 U.S. 629 (1953)
Facts: The government sought an injunction against unfair trade practices, but the defendant ceased the conduct.
Holding: The case was not moot because the cessation could be temporary and the defendant could resume illegal conduct.
Application: Voluntary cessation does not automatically moot a case.
4. NRDC v. U.S. EPA, 464 F.3d 1 (D.C. Cir. 2006)
Facts: EPA rescinded a rule regulating power plants challenged by environmental groups.
Holding: Court held the challenge was moot as the rescission was final and the agency made no indication of intent to reissue the rule.
Conclusion: Final rescission can moot challenges unless the issue is capable of repetition or other exceptions apply.
5. Friends of the Earth, Inc. v. U.S. EPA, 446 F.3d 140 (D.C. Cir. 2006)
Facts: EPA attempted to rescind a pesticide tolerance rule challenged by environmental groups.
Holding: The court held the case was not moot because EPA’s rescission was potentially temporary and the challenged action was likely to recur.
Significance: Reinforces the “capable of repetition, yet evading review” exception to mootness.
6. Sierra Club v. U.S. Army Corps of Engineers, 909 F.3d 635 (D.C. Cir. 2018)
Facts: The Corps rescinded a permit challenged in court.
Holding: The court found the case moot because the rescission was genuine, no ongoing harm existed, and no evidence suggested the permit would be reinstated.
Insight: Genuine rescission with no ongoing harm typically moots challenges.
Summary Table of Mootness Doctrine in Rescinded Rules Cases
| Case | Outcome | Key Principle |
|---|---|---|
| Friends of the Earth v. Laidlaw (2000) | Not moot | Voluntary cessation does not moot if conduct can resume |
| Environmental Defense Fund v. EPA (1988) | Moot | Genuine rescission moots case |
| United States v. W.T. Grant Co. (1953) | Not moot | Voluntary cessation exception |
| NRDC v. EPA (2006) | Moot | Final rescission moots case |
| Friends of the Earth v. EPA (2006) | Not moot | Capable of repetition exception |
| Sierra Club v. Army Corps (2018) | Moot | Genuine rescission with no harm moots case |
Practical Takeaways
Voluntary Cessation Exception: Agencies cannot avoid review simply by rescinding or suspending a rule temporarily.
Capable of Repetition, Yet Evading Review: If the agency is likely to reinstate the rule or similar issues recur, courts will hear the case.
Genuine Final Rescission: If rescission is final and no ongoing harm exists, courts will typically find the case moot.
Collateral Consequences: Even after rescission, if adverse effects persist (e.g., enforcement records, penalties), courts may find the case justiciable.
Conclusion
Mootness doctrine serves to prevent courts from ruling on hypothetical or academic disputes, but courts carefully scrutinize rescissions to prevent agencies from using mootness as a shield against judicial review. Cases show a nuanced approach balancing finality against potential evasion of judicial oversight.
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