In a short Per Curiam opinion issued December 23, 2008, the U.S. Court of Appeals for the D.C. Circuit in North Carolina v. EPA, Case No. 05-1244 (and consolidated cases) reinstated the “Clean Air Interstate Rule” (CAIR), which the court had previously vacated in July, 2008.
CAIR is a federal clean-air rule that was promulgated by the EPA to reduce emissions of smog-forming pollutants from power plants. It requires states, mostly in the East, to cut emissions that are carried long distances by wind.
Although the D.C. Circuit had vacated the rule (see, North Carolina v. EPA, 531 F.3d 896, 901 (D.C. Cir. 2008) (per curiam)), the EPA filed a petition for rehearing in September, 2008, requesting a remand without a “vacatur.” After hearing both sides, the Court granted the EPA’s opinion “only to the extent that . . . EPA . . . conduct further proceedings consistent with our prior opinion.” The court stated that:
Here, we are convinced that, notwithstanding the relative flaws of CAIR, allowing CAIR to remain in effect until it is replaced by a rule consistent with our opinion would at least temporarily preserve the environmental values covered by CAIR.
Judge Rogers, in a concurring opinion, went a little further, stating:
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.
This move by the court is unusual, although not unheard of. The usual course of events is that when a rule or regulation is remanded back to the agency, it is vacated (as the D.C. Circuit did back in July, 2008). However, the court may remand the rule without vacating it, when the vacatur “would at least temporarily defeat . . . the enhanced protection of the environmental values covered by [the EPA rule] at issue.” Environmental Defense Fund, Inc. v. Administrator of the United States EPA, 898 F.2d 183, 190 (D.C. Cir. 1990). Such is the case, the court found, with CAIR.
CAIR and the EPA are not out of the woods yet, however. The court reminded the EPA that its prior decision “revealed CAIR’s fundamental flaws, which EPA must still remedy.” Nor, despite not setting a firm deadline for the EPA, would the court countenance foot-dragging on the part of the EPA, reminding 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.”
Thus, EPA Administrator Lisa Jackson has yet another Clean Air Act agenda item. In the space of two weeks, the D.C. Circuit has reinstated CAIR, and overturned the SSM exemption (see, “Court Overturns 15-Year Old Pollution Exemption for Industries”). In addition, the EPA Administrator proclaimed that CO2 emissions cannot be limited in Clean Air Act permits (see, “EPA Adminsitrator Issues Memorandum Prohibiting Controls on Carbon Dioxide in Clean Air Permits”). Moreover, reinstating CAIR has put pressure on state environmental agencies to enforce the standards.