BREAKING NEWS – Clean Air Interstate Rule Overturned

On Friday July 11th, the U.S. Court of Appeals for the District of Columbia Circuit struck down the Clean Air Interstate Rule (CAIR) and the CAIR Federal Implementation Plan (FIP).  The rule was vacated in its entirety and remanded back to the United States Environmental Protection Agency (U.S. EPA) with direction to promulgate a rule that is consistent with the opinion of the court. The court decided that U.S. EPA’s approach to CAIR using regionwide caps with no state-specific quantitative contribution determinations or emissions requirements was “fundamentally flawed” and directed U.S. EPA to “redo its analysis from the ground up.”  In summary, the court decided that:

• U.S. EPA must reconsider which states are included in CAIR. 
• U.S. EPA must decide what date, whether 2015 or earlier, is as “expeditious as practicable” for states to eliminate their significant contributions to downwind nonattainment. 
• The trading program is unlawful.
• The SO2 regionwide caps are entirely arbitrary.
• The allocation of state budgets from the NOx caps is similarly arbitrary because U.S. EPA distributed allowances simply in the interest of fairness.
• A similar CAIR may emerge after rebuilding (even though the court noted that “CAIR’s flaws are deep”).

In the absence of CAIR, the court stated that the NOx SIP Call trading program will continue and in the court’s opinion, should mitigate any disruption that might result from the vacating of CAIR at least with regard to NOx.  A more detailed analysis of the court’s CAIR decision will be presented in the August 2008 edition of ALL4’s 4 the Record.   A copy of the decision can be veiwed here.