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23 December 2008 -- In a four page decision issued December 23, the United States Court of Appeals for the District of Columbia Circuit sent the Clean Air Interstate Rule (CAIR) back to the U.S. Environment Protection Agency to repair flaws that led the same court last July 11 to vacate the rule.
The court gave no timetable for the flaws to be repaired. It said, however, it did not intend to grant an indefinite stay to its decision.
The court said it was convinced that, "notwithstanding the relative flaws of CAIR," allowing the rule to remain in effect until it is replaced by a rule consistent with the court's opinion would "at least temporarily preserve the environmental values covered by CAIR."
"Having considered the parties' respective positions with respect to the remedy in this case, the court hereby grants EPA's (the Environmental Protection Agency's) petition only to the extent that we will remand the case without vacatur for EPA to conduct further proceedings."
Speaking at a CAIR briefing December 2 at POWER-GEN International, Margaret Campbell, a lawyer with Troutman and Sanders said the reconsideration process at EPA could take as long as a year.
"I almost think it would be better for everybody if CAIR could just die a quiet death at the end of this year and we could start over," she said. "That would certainly incentivize EPA to get started on a new rule."
She said that under the incoming Obama administration the government "is likely to pursue a regulatory approach first because the wheels are already in motion."
She said it would be easy for the Obama administration to issue a proposal on CO2 emissions. "It could be simply an endangerment finding concluding that CO2 does endanger the public health and should be regulated. That would show that the Obama administration is serious about regulating CO2 emissions one way or another. Maybe it puts pressure on industry to compromise on legislation and free up the administration to deal with other issues such as the economy."
Speaking at the same briefing, Robert Kappelman, principal energy environmental power consultant with RLK Associates said since the July 11 ruling "a lot of the deadlines have been missed."
"CAIR would have made it a lot easier for us as an industry to know what we're going to be facing."
The case is No. No. 05-1244, State of North Carolina vs. EPA.
Stories of interest:
Congress debates repairing CAIR
Court tosses out CAIR emissions rule
Court tosses out CAIR emissions rule
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