Monday, January 05, 2009

D.C. Appeals Court Overturns CAIR Vacatur

Dec 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 05-1244, consolidated with 31 other cases and involving scores of attorneys. Just in time to meet the January 1, 2009, first major compliance deadline under U.S. EPA's Clean Air Interstate Rule (CAIR), the Appeals Court responded in part to a request by EPA and other parties and remanded the case, "without vacatur," for EPA to conduct further proceedings consistent with the court's prior opinion. Previously, on July 11, 2008 [See WIMS 7/14/08], the Appeals Court had ruled, ". . . we find more than several fatal flaws in the rule and . . . we vacate the rule in its entirety and remand to EPA to promulgate a rule that is consistent with this opinion." EPA, environmental groups, states and others had asked the court to reconsider its July 11 opinion. The program was designed to reduce millions of tons of smog- and particulate-forming pollution from coal-fired power plants in 28 eastern states.

The Appeals Court said in the latest reconsideration, "On July 11, 2008, we issued an opinion, in which we found 'more than several fatal flaws in the rule.' North Carolina v. EPA, 531 F.3d 896, 901 (D.C. Cir. 2008) (per curiam). In light of the fact that the Environmental Protection Agency (EPA) adopted CAIR as an integral action, we vacated the rule in its entirety and remanded to EPA to promulgate a rule consistent with our opinion. Id. at 929-30. On September 24, 2008, Respondent EPA filed a petition for rehearing or, in the alternative, for a remand of the case without vacatur. On October 21, 2008, we issued an order on our own motion directing the parties to file a response to EPA’s petition. (Order at 1, Oct. 21, 2008.) We also required the parties to 'address (1) whether any party is seeking vacatur of the Clean Air Interstate Rule, and (2) whether the court should stay its mandate until Respondent [EPA] promulgates a revised rule.' Id. Respondent EPA was given leave to 'reply to the question whether a stay of the court’s mandate in lieu of immediate vacatur would suffice.'

"Having considered the parties’ respective positions with respect to the remedy in this case, the court hereby grants EPA’s petition only to the extent that we will remand the case without vacatur for EPA to conduct further proceedings consistent with our prior opinion. . . In addition, some of the Petitioners have suggested that this court impose a definitive deadline by which EPA must correct CAIR’s flaws. Notwithstanding these requests, the court will refrain from doing so. Though we do not impose a particular schedule by which EPA must alter CAIR, we remind EPA that we do not intend to grant an indefinite stay of the effectiveness of this court’s decision. Our opinion revealed CAIR’s fundamental flaws, which EPA must still remedy. Further, we remind the Petitioners that they may bring a mandamus petition to this court in the event that EPA fails to modify CAIR in a manner consistent with our July 11, 2008 opinion."

In a separate concurring opinion, one of the Judges indicated, "The parties’ persuasive demonstration, extending beyond short-term health benefits to impacts on planning by states and industry with respect to interference with the states’ ability to meet deadlines for attaining national ambient air quality standards for PM2.5 and 8-hour ozone, shows that the rule has become so intertwined with the regulatory scheme that its vacatur would sacrifice clear benefits to public health and the environment while EPA fixes the rule."

Vickie Patton, deputy general counsel at Environmental Defense Fund (EDF) said, "Today's court decision is a welcome gift for the millions of American's that face serious health threats from power plant pollution. Power plants across the East will reduce millions of tons of smog and soot pollution today while America's new leadership fixes the mistakes made by the Bush Administration."

Access the complete opinion (
click here). Access a release from EDF (click here). Access EPA's CAIR website for additional information (click here). [*Air]