In Black Warrior Riverkeeper, Inc. v. United States Army Corps of Engineers, as a matter of first impression for the United States Court of Appeals for the Eleventh Circuit, the court of appeals issued "remand without vacatur." In civil cases, remand without vacatur applies solely to suits questioning the validity of federal administrative regulations, and courts use this remedy sparingly. Just five circuit courts have applied remand without vacatur, and only the United States Court of Appeals for the District of Columbia has employed the remedy with any frequency. Black Warrior Riverkeeper involved two environmental groups alleging the Army Corps of Engineers (the Corps) lacked justification for Nationwide Permit 21 (NWP 21), which allowed surface mining operations in Alabama to discharge material into the Black Warrior River.
Hogg, Rebekah L.
"(Not So) Desperate Times Call for (Not So) Desperate Measures: The First Use of Remand Without Vacatur in the Eleventh Circuit,"
Mercer Law Review: Vol. 67:
4, Article 15.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol67/iss4/15