In two brief orders filed January 24, 2013, the U.S. Court of Appeals for the District of Columbia Circuit has denied petitions for rehearing on the Court’s August 21, 2012 vacatur of the Cross-State Air Pollution Rule (CSAPR). The Court denied petitions filed by both the U.S. Environmental Protection Agency (EPA) and a number of intervenors in support of EPA. While the possibility of rehearing has been foreclosed, EPA and intervenors may still seek an appeal to the U.S. Supreme Court.
In the meantime, the Clean Air Interstate Rule (CAIR), which was remanded to EPA in a 2008 ruling and was to be replaced by CSAPR, remains in effect. Although CAIR will continue to be implemented into the indefinite future (until vacatur is possibly reversed by the U.S. Supreme Court or a replacement is promulgated by EPA), it remains unclear to what extent pending state implementation plans will be able to rely on CAIR-based emission reductions to meet regional haze and other Clean Air Act requirements. EPA has issued guidance suggesting that the agency believes it is appropriate for states to rely on CAIR-based emission reductions as permanent and enforceable in certain circumstances. Environmental groups, however, are objecting to any such reliance on CAIR and have reportedly filed a challenge to EPA’s guidance.
For additional information, contact Joseph Brown.