Is the Court showing signs that it may have gone too far is throwing out CAIR? After EPA filed a request for rehearing, a hopeful sign emerged last month when the Court asked the parties challenging CAIR to respond to two questions:
- Does any party really want the entire rule thrown out (vacatur)?
- Should the Court stay the effectiveness of its decision to throw out the rule until EPA fixes and re-issues a new rule addressing the Court's issues?
In response, twenty-two (22) states, including North Carolina, told the Court they don't want the rule thrown out. The States requested the Court to stay the effectiveness of its decision to allow EPA to fix the rule. However, North Carolina was concerned with how much time EPA would have to fix the rule-it opposed an indefinite stay. Rather, N.C. proposed a deadline of July 2009 after which the stay would end.
The Utilities were split on the issue. Some asked for the rule to be thrown out, while others preferred remand. The argument in support of throwing out CAIR can be summed up by this quote from the brief filed by the Florida Association of Electric Utilities:
Regulatory certainty is critically important, and granting rehearing or staying the mandate would require CAIR states to immediately implement, and affected sources to immediately comply with a rule the Court has declared contains "more than several fatal flaws."
The Utilities opposing remand or a stay ask a valid question- What portion of a "fundamentally flawed" program are going to remain after EPA fixes the rule. EPA has said it will take 2-3 years to fix CAIR. The Utilities argue why should they be forced to comply with provisions of the rule that Court has said are fundamentally flawed for the next several years.
U.S. EPA also filed a brief in response to the two questions posed by the Court. EPA says it prefers a stay of effectiveness of the vacatur decision while it fixes the program. However, it also says it must have rehearing on certain critical issues or CAIR will be ineffectual at reducing pollution even if the Court grants a stay.
Principally, U.S. EPA wants rehearing on the Court's decision that EPA does not have the authority to adjust Title IV (acid rain) allowance under the CAIR program. Without the authority, EPA argues it cannot create a program that will impose greater reductions of SO2 emissions. This would mean the less stringent caps under the old Acid Rain Program will remain.
EPA says this will also impact the emission reductions achieved during a potential stay. Without clear authority to adjust Acid Rain caps and allowances, Utilities will have no incentive to hold banked allowances for future compliance. This is because Utilities will not anticipate a stronger program will emerge after EPA fixes the rule. Rather, Utilities will simply use up the allowances during the stay and emission reductions will not occur.
EPA raises an interesting issue- Even if a stay is granted there will be tremendous uncertainty as to what the Utilities will do with allowances during the stay. While EPA makes a valid point, they may have ended the possibility of a stay if the Court is unwilling to reconsider its position that the rule is fundamentally flawed.
Given all the posturing by the Parties, it will be interesting to see what course of action the Court takes in response.
There appears to be growing awareness that the CAIR decision has major implications beyond just the Utilities. For instance, what about upcoming deadlines for attaining federal air quality standards (NAAQS)? Without the CAIR SO2 reductions States will likely not be able to comply in time. Should the State's be punished for EPA's failure to develop a legally enforceable program?
In yesterday's U.S. News and World Report there was an article covering the uncertainty that swirls around the future of clean air post CAIR.
Five months after a federal court struck down the Bush administration's top program aimed at curbing air pollution, the fate of air quality regulation—and, therefore, air quality—in much of the country is increasingly uncertain, if not imperiled.
I was interviewed for the story and was able to point out that the States can't fix air quality issues on their own. Federal help through programs like CAIR is needed to address what is a regional issue, not a local issue.
"In the case of fine-particulate pollution, there is a huge regional soup of it," says Joseph Koncelik, an Ohio-based environmental lawyer and the former Ohio EPA director. "So, it's somewhat ineffective if states are working on their own, just trying to control a few factories in their jurisdiction."
If the Court doesn't grant the stay and issues its mandate effectively throwing out CAIR, will EPA still hold the States accountable for the 2010 deadline to meet the fine particle standard (PM 2.5)?