D.C. Circuit Declines to Rehear Decision Vacating EPA Cross-State Air Rule

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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 particulate matter.

Seven Judges Voted

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 down.

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.

Supreme Court Appeal an Option

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 Supreme Court.

“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 Act.”

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 rehearing.

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.

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