• Industry, EPA, and Environmentalists Ask Court to Reconsider CAIR
  • October 19, 2008
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • The Environmental Protection Agency, the Utility Air Regulatory Group, the National Mining Association and a group of environmental parties each separately asked the U.S. Court of Appeals for the D.C. Circuit on Wednesday to reconsider a decision of a three-judge panel to vacate the Clean Air Interstate Rule (“CAIR”). A denial of the petitions could come as soon as a few weeks from now. The petitions cannot be granted that quickly because the Court would first have to ask for briefs from any parties who oppose rehearing.

    CAIR sought to establish a regional trading program designed to achieve significant reductions in nitrogen oxide (NOx) and sulfur dioxide (SO2) emissions from power plants. According to EPA officials, the vacatur of the program will “cause the installation of fewer controls, cancellation of planned control installations, reduced or foregone operation of some previously installed controls and less use of other reduction strategies such as fuel switching.” EPA officials estimate that the vacatur has caused $9 billion in damage to the fledgling trading markets and that, with SO2 now trading near $150 per ton, it is no longer economically beneficial to operate existing SO2 control devices, which cost between $100 and $200 per ton of SO2 just to operate. Without a solution to the vacatur, EPA estimates that it will take between five and seven years to re-adopt and implement the program that was originally schedule to begin next year, significantly delaying the air quality benefits it was meant to provide.