United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed January 7, 2005
No. 02-1294
HONEYWELL INTERNATIONAL, INC.,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
ATOFINA CHEMICALS, INC.,
INTERVENOR
On Petition for Rehearing
Before: SENTELLE, RA NDOLPH, and ROGERS, Circuit
Judges.
Opinion for the Court filed PER CURIAM .
PER CURIAM : On reconsideration, we find it unnecessary
to decide whether § 307(d)(9) of the Clean Air Act, 42 U.S.C.
§ 7607(d)(9), requires a court to vacate erroneous action of the
Environmental Protection Agency. Even if § 307(d)(9) gives a
court discretion to remand without vacating, we would vacate
EPA’s rule for the reasons given in Judge Randolph’s
concurring opinion, in which Judge Sentelle joined. See
2
Honeywell Int’l, Inc. v. EPA, 374 F.3d 1363, 1375 (D.C. Cir.
2004). Subpart III of Part II of the per curiam opinion, 374 F.3d
at 1373-74, is therefore withdrawn. In all other respects, the
petition for rehearing is denied.
So ordered.
ROGERS, Circuit Judge, concurring in part and dissenting in
part: While the court on rehearing no longer holds that the
Clean Air Act requires vacatur of the challenged rule
authorizing the use of ozone-depleting chemicals, the court
continues “to brush[] aside our exhaustive caselaw” on whether
an erroneous rule should be remanded or vacated. Honeywell
Int’l Inc. v. EPA, 374 F.3d 1363, 1380 (D.C. Cir. 2004) (Rogers,
J., concurring in part and dissenting in part) (citing cases). Until
the en banc court endorses the view expressed in Judge
Randolph’s concurring opinion regarding vacatur, see id. at
1375 (Randolph, J., concurring), binding precedent requires a
remand when vacatur might be unnecessarily disruptive, see id.
at 1379-81 (Rogers, J., concurring in part and dissenting in part).
Again, the court on rehearing declines to “engage the prudential
inquiry our case law requires,” id. at 1380, ignoring that
clarification by the agency may render the error harmless and
that vacatur risks disruption to the regulatory scheme, including
harm to the environment as a result of widespread use of ozone-
depleting chemicals, see id. at 1379-80. Accordingly, while I
concur in the withdrawal of Subpart III of Part II of the per
curiam opinion, id. at 1373-74, which held that section 307(d)(9)
of the Clean Air Act, 42 U.S.C. § 7607(d)(9) (2000), required
vacatur of the challenged rule, I continue to dissent from the
judgment vacating the rule, see Honeywell, 374 F.3d at 1381
(Rogers, J., concurring in part and dissenting in part), and I
would grant rehearing.