D.C. Circuit Court Determines Not to Vacate CAIR

March 17, 2009
by BART CASSIDY
MGKF News Flash

In a reversal of its earlier decision, the D.C. Circuit Court of Appeals determined to remand without vacatur EPA's CAIR rule. The Court did not change its position regarding the inconsistency of the regulations with EPA's authority under the Clean Air Act, but nonetheless determined to leave the flawed rule in place pending promulgation by EPA of a revised rule.

The Court was likely influenced by the filings by many states in support of remand without vacatur. These states argued that the loss of the emission reductions mandated by CAIR would severely impair the states' ability to achieve or maintain attainment with national ambient air quality standards.

In light of the Court's ruling, many states have resurrected or preserved state-specific CAIR program. In the Northeast, these CAIR programs replaced the NOx budget program within the NOx allowance trading program applicable to electric generating units. North Carolina v. EPA, 531 F.3d. 896 (D.C. Cir. 2008), and 550 F.3d 1176 (D.C. Cir. 2008).