That federal agencies enjoy numerous advantages in defending against legal challenges to their administrative decision-making is a fact of administrative law.  But these advantages extend beyond the favorable standards of review that typically apply to their decisions.  An agency can, for example, sometimes short circuit what might be a meritorious appeal by seeking a “voluntary remand” from the Court, thereby potentially affording itself more control over any reconsideration while avoiding creating unfavorable precedent.  As a reminder of this, the Sixth Circuit recently held that EPA was entitled to reconsider one of its Clean Air Act (CAA) rulemakings, namely its decision to remove the air nuisance rule (ANR), a broad standard that generally prohibited nuisance emissions that endangered the “health, safety, or welfare of the public,” from Ohio’s State Implementation Plan (SIP), without the Court vacating EPA’s underlying decision.  Sierra Club et al. v. EPA, No. 21-3057, 2023 WL 1873168, at * 1 (6th Cir. Feb. 10, 2023).    Read More »

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In In re LTL Management, LLC, No. 22-2003 (Jan. 30, 2023), the U.S. Court of Appeals for the Third Circuit had occasion to consider whether an entity that was created solely to house liabilities and file for bankruptcy could, in fact, file for bankruptcy where another entity was contractually obligated to pay those liabilities. The Court dismissed the bankruptcy petition, reasoning that this contractual obligation meant the former entity was not in financial distress and thus could not avail itself of the bankruptcy process.    Read More »

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