Count me as someone who agrees with the Ninth Circuit in this case that the appropriate remedy is to remand the case (as both parties recognize) but not vacate the EPA's rule in the interim. Exactly right.
I'm not, however, similarly on board for the panel's blithe statement in the final paragraph of the opinion that saving an endangered animal species is morally equivalent to helping a new power plant come online a couple of years earlier. The former is a species, and is irreversible. Forever. Whereas the latter is a machine, and while such a machine may well be important, the "risk of blackouts" for a brief period -- even if it exists -- simply lacks the gravity of the destruction of an entire species.
I'll hand it to the panel -- Judges Kozinski, Trott and Thomas -- for being honest and forthright about their policy preferences. I just don't share them.
Doesn't matter in the present case. Except attitudinally.
