Will the CAIR Vacatur be Overturned?

On September 24, 2008, U.S. EPA petitioned the U.S. Court of Appeals for the D.C. Circuit for a Panel rehearing or en banc rehearing of the Court’s July 11, 2008 decision to vacate the Clean Air Interstate Rule (CAIR). Intervenors in the case (Environmental Defense Fund, National Resources Defense Council, U.S. Public Interest Research Group, Utility Air Regulatory Group, and the National Mining Association) also petitioned for a Panel or en banc rehearing of the decision. 

In response to the petitions, on October 21, 2008 the Court ordered the Petitioners in the case to respond to U.S. EPA’s petition for a Panel or en banc rehearing.  Specifically, the Court requested that the Petitioners address 1) whether they were seeking vacature of CAIR and 2) whether the mandate vacating CAIR should be stayed until U.S. EPA issues a revised CAIR regulation. 

The November 5, 2008 Petitioner’s responses to the Court’s order were varied, and each Petitioner focused on the aspects of the case that were of importance to his or her interests.  The Petitioner’s responses to the Court’s specific requests regarding the granting of a rehearing and stay of the mandate were as follows:

• North Carolina opposed a rehearing, but supported a stay of the mandate with a short deadline for U.S. EPA to re-promulgate CAIR.
• 22 Eastern States (amici states) supported both the petition for rehearing and stay of the mandate.
• The SO2 Petitioners, with the exception of Duke Energy, opposed both a rehearing and a stay of the mandate.  Duke Energy opposed a rehearing, but supported a stay of portions of the mandate (they believe the SO2 portions of CAIR should be vacated).
• Entergy and FPL Group opposed a stay, but although they did not seek vacatur of the rule, believe it is the only appropriate remedy.
• The Florida Association of Utilities (one of the NOx Petitioners) opposed both a rehearing and a stay of the mandate.