CAIR Lives, Confusion Reigns

            The Federal Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) issued an Order December 23, 2008, that revises a remedy it had previously issued in July of 2008. The D.C. Circuit vacated the Clean Air Interstate Rule (CAIR) in July, but had not issued the court mandate making the vacatur effective.

 

Subsequent to the vacatur decision, states and the regulated community had to begin to put the toothpaste back in the tube inasmuch as most eastern states had promulgated regional haze State Implementation Plans (SIPs) that were predicated on the CAIR being in place. Reactions ranged from simply observing proceedings while waiting for the D.C. Circuit Court mandate to be issued to at least one state proposing emergency rules to replace the CAIR at the state level. Complicating the issue was the fact that the CAIR required utilities to commence operating NOx and some SO2 controls as early as January 1, 2009. With the expected vacatur imminent, many utilities were uncertain regarding whether to complete construction of controls and, if control units were completed, whether they had to commence operation in January of 2099.

 

The December 23, 2008, D.C. Circuit Court Order revised the remedy from vacatur to remand, but does not impose a deadline on EPA to respond to the Order. The impact is that the CAIR remains in effect at least until EPA responds to the remand Order. However, during the interim between the July vacatur decision and the December remand Order, many states began negotiating a Memorandum of Understanding (MOU) that, if implemented, may trump even the CAIR requirements for NOx and SO2 controls.

 

Our understanding is that a draft MOU is circulating among states east of the Mississippi River and that negotiations are continuing despite the remand Order. Stay tuned for further developments.

 

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.