The D.C. Circuit Court of Appeals issued its much anticipated decision in response to U.S. EPA’s request for reconsideration of the decision vacating the CAIR program. The decision marks an important victory for U.S. EPA, the State and provides some level of certainty for utilities.
The Court decided to remand the rule to U.S. EPA so it can fix the rules "fatal flaws" identified in its earlier decision. This decision has the effect of preserving the CAIR rule in the interim while EPA overhauls the rule. The Court also rejected the request by some to establish a firm deadline by which EPA must re-issue the rule.
Here is how the Court explained the rationale for its decision:
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. Accordingly, a remand without vacatur is appropriate in
We explained that vacatur was appropriate
because of the depth of CAIR’s flaws, the integral nature of the
rule, and because other statutory and regulatory measures would
mitigate the disruption caused by vacating the rule. Id.
However, on rehearing, EPA, petitioners, and amici states point
to serious implications that our previous remedy analysis,
including our consideration of mitigation measures, did not
adequately take into account. 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
While not addressing the issue, the Court rejected its request for reconsideration of what EPA identified as key issues. One such issue was whether EPA has the authority to adjust the value of Acid Rain allowances under CAIR.
While this decision is very good news for EPA and the States who are trying to plan for meeting air quality standards, it still leave a tremendous amount of uncertainty. The Court is not reconsidering any of the "fatal flaws" it identified with CAIR, which were numerous. The rule that will emerge after being fixed by EPA will look vastly different than before.
Now utilities will be left with making key decisions about the use of allowances and construction of new controls without the benefit of knowing what the new CAIR rule will look like. While the picture got a little clearer today, there is still a whole bunch of uncertainty.