The U.S. Court of Appeals for the District of Columbia Circuit on Jan. 24 declined to rehear a
case in which the court vacated an Environmental Protection Agency rule that
aimed to curb air pollution crossing state lines (EME Homer City Generation
LP v. EPA, D.C. Cir., No. 11-1302, rehearings denied 1/24/13).
EPA, several states, cities, environmental groups, public health groups, and
utilities that use clean fuels asked the court to rehear the case Oct. 5, and
the denial means the only avenue of appeal left open to the agency is before the
U.S. Supreme Court (43 ER 2565, 10/12/12).
The Cross-State Air Pollution Rule, which EPA issued in July 2011, would
require 28 states in the East, Midwest, and South to reduce power plant
emissions of nitrogen oxides and sulfur dioxide that cross state lines. The
rule, at 40 C.F.R. parts 51, 52, 72, 78, and 97 was intended to help downwind
states meet national ambient air quality standards for ozone and fine
Seven judges voted on the question of rehearing, but the court did not
disclose how the judges voted. EPA would have needed four of the seven judges to
agree to rehearing.
The voting judges were David Sentelle, Judith Rogers, David Tatel, Merrick
Garland, Janice Rogers Brown, Thomas Griffith, and Brett Kavanaugh. Judge Karen
LeCraft Henderson did not vote.
In addition, the original three-judge panel of Rogers, Griffith, and
Kavanaugh was asked for panel rehearing. That request also was denied
Jan. 24, and the order indicated only Rogers would have granted the request.
Rogers also filed a dissenting opinion when the cross-state rule was struck
Kavanaugh and Griffith in a decision
issued Aug. 21, 2012, found that EPA erroneously issued federal implementation
plans under the cross-state rule when it should have allowed states the
opportunity to issue state plans.
In addition, the court said the rule may have required upwind states to
reduce their emissions by more than their “significant contributions” to a
downwind state's nonattainment.
EPA said Jan. 24 it is reviewing the decision and did not specifically
respond to a question on whether the agency plans to appeal the case to the
“EPA is disappointed that the Court did not grant EPA's petition for
rehearing,” the agency said in a statement to BNA. “The agency is reviewing the
decision and will determine any appropriate further course of action once the
review is complete.”
The Clean Air Interstate Rule, a regulation issued under the Bush
administration that also aims to address pollution that crosses state lines,
remains in effect because of the vacatur of the cross-state rule.
“[N]o immediate action from States or affected sources is expected at this
time,” the agency said. “EPA remains committed to working with States and the
power sector to address pollution transport issues as required by the Clean Air
John Walke, clean air director for the Natural Resources Defense Council,
told BNA Jan. 24 that because three-and-a-half months had passed between the
rehearing request and the order, observers were expecting that some of the
judges were preparing lengthy dissents. Instead, the court issued just two
one-page orders, one denying en banc rehearing and the other denying panel
A strongly worded dissent would have helped EPA prepare an appeal to the
Supreme Court, Walke said.
“It's a terrible day for clean air,” Walke said. “The outcome is profoundly
disappointing and will be a severe setback to efforts to clean up air pollution
in the eastern half of the United States. There's no grounds for rejoicing if
you like to breathe.”
Jeffrey Holmstead, a former EPA assistant administrator for air and radiation
who now is an attorney at Bracewell & Giuliani LLP, told BNA Jan. 24 he does
not think the government will appeal the case to the Supreme Court.
“The solicitor general's office is pretty careful about using its credibility
with the court,” Holmstead said. “They only go to the Supreme Court if they
think there's an important decision that needs to be reversed.”
And if the government does appeal the case to the Supreme Court, Holmstead
said he does not think the case would interest the justices because it focuses
on obscure issues, not overarching legal or policy issues.
By Jessica Coomes
The order by the U.S. Court of Appeals for the District of Columbia Circuit
in EME Homer City Generation LP v. EPA denying rehearing en banc is
available at http://op.bna.com/fcr.nsf/r?Open=jcos-949uph.
The order denying panel rehearing is available at http://op.bna.com/fcr.nsf/r?Open=jcos-949upa.