context: Only then will the public's interest in proper process and in the substantive provisions of the ESA be furthered. Here, AFRC has made a case for vacatur. But missing from the equation is any concession of error by the agency, or even any hint as to how exactly, in FWS's view, the critical habitat designa tion "may" be deficient. This is in contrast not only to the Home Builders cases, already discussed, but also to other cases in which courts have vacated agency rules pursuant to an agency's request for vacatur.
citation_a.signal: see
citation_a.identifier: 705 F.3d 463, 463, 466
citation_a.parenthetical: vacating and remanding provisions of EPA rule based on agency's conceded lack of authority to promulgate those provisions
citation_a.sentence: See, e.g., Sierra Club, 705 F.3d at 463, 466 (vacating and remanding provisions of EPA rule based on agency’s conceded lack of authority to promulgate those provisions); Bldg. Indus. Legal Def. Found v. Norton, 231 F.Supp.2d 100, 103, 108 (D.D.C.2002) (vacating critical habitat where “[a]ll parties, including the responsible agency, agree[d] that the economic analyses used in designating the critical habitats [were] substantively defective”); cf. Consumer Energy Council, 673 F.2d at 447 n. 79 (“The Commission’s argument that notice and comment requirements do not apply to ‘defectively promulgated regulations’ is untenable because it would permit an agency to circumvent the requirements of § 553 merely by confessing that the regulations were defective in some respect and asserting that modification or repeal without notice and comment was necessary to correct the situation.”).
citation_b.signal: cf.
citation_b.parenthetical: "The Commission's argument that notice and comment requirements do not apply to 'defectively promulgated regulations' is untenable because it would permit an agency to circumvent the requirements of SS 553 merely by confessing that the regulations were defective in some respect and asserting that modification or repeal without notice and comment was necessary to correct the situation."
citation_b.sentence: See, e.g., Sierra Club, 705 F.3d at 463, 466 (vacating and remanding provisions of EPA rule based on agency’s conceded lack of authority to promulgate those provisions); Bldg. Indus. Legal Def. Found v. Norton, 231 F.Supp.2d 100, 103, 108 (D.D.C.2002) (vacating critical habitat where “[a]ll parties, including the responsible agency, agree[d] that the economic analyses used in designating the critical habitats [were] substantively defective”); cf. Consumer Energy Council, 673 F.2d at 447 n. 79 (“The Commission’s argument that notice and comment requirements do not apply to ‘defectively promulgated regulations’ is untenable because it would permit an agency to circumvent the requirements of § 553 merely by confessing that the regulations were defective in some respect and asserting that modification or repeal without notice and comment was necessary to correct the situation.”).