Vacatur as Complete Relief

Remedies are the next frontier in administrative law. One question vexes jurists and scholars in particular: What does the Administrative Procedure Act (APA) mean when it instructs courts to “set aside” agency action? On one reading, “set aside” means “vacate”— the court wipes the agency action off the books entirely. On another reading, however, “set aside” has a more circumscribed meaning: disregard the regulation in individual cases (i.e., enforcement actions). The debate is one of statutory interpretation, and this essay does not seek to resolve it. Rather, this essay points out a potential follow-on consequence of the debate’s resolution: If “set aside” means only “disregard,” then unregulated third parties may not be able to challenge agency action that has a predictable, adverse effect on them. The Supreme Court’s opinion in Diamond Alternative Energy, LLC v. EPA—the subject of this essay—is illustrative.