The Environmental Protection Agency (EPA) on Friday appealed a federal court decision handed down on Aug. 21 that vacated the agency’s July 2011–finalized Cross-State Air Pollution Rule (CSAPR) because, the court said, it violated federal law. The EPA is now seeking a rehearing en banc that would involve all eight judges that serve at the U.S. Court of Appeals for the D.C. Circuit.

The EPA’s petition says that a rehearing en banc is required "to preserve the uniformity" of the appellate court’s decisions, saying the court had made "numerous other decisions that protect the integrity of the administrative and judicial process by strictly construing the [Clean Air Act’s] jurisdictional and exhaustion requirements."

A three-judge panel of the Appeals Court, consisting of Judges Rogers, Griffith, and Kavanaugh, heard arguments on legal challenges to the CSAPR in April, but it was deeply divided when it issued its decision in August. Judge Kavanaugh wrote the opinion for the court, joined by Judge Griffith. Judge Rogers strongly dissented, arguing Judge Kavanaugh’s opinion represented a “trampling on this court’s precedent on which the [EPA] was entitled to rely in developing the Transport Rule rather than be blindsided by arguments raised for the first time in this court.”

On Friday, the EPA appealed the decision using an argument on the same lines: “The panel’s decision upends the appropriate relationship of the judicial, legislative, and executive branches of government by rewriting clear legislation, ignoring explicit statutory jurisdictional limits, and stepping into the realm of matters reserved by Congress and the courts to the technical expertise of administrative agencies. Especially in light of the enormous public health and regulatory significance of the Transport Rule, these clearly are issues of ‘exceptional importance’," the Oct. 5 petition says.

The EPA argues that in the panel’s issuance of the Aug. 21 ruling, which held that the agency lacked authority to promulgate Transport Rule federal implementation plans, the panel "acted contrary to decisions of this Court by (1) reaching out to invalidate EPA actions that were not before the Court and for which the statutory review period had previously run, and (2) exceeding the Court’s proper role in statutory interpretation by rewriting the plain language of the Act."

In a statement on Friday, the EPA added that as proposed, CSAPR was a "cost-effective and common-sense approach that would help states meet their Clean Air Act obligations to cut air pollution and meet air quality health standards, preventing more than 30,000 premature deaths and hundreds of thousands of illnesses each year. Our filing today signals our commitment to this goal."

The agency noted that implementation of an interstate pollution rule had suffered several delays. CSAPR replaced CAIR, a rule promulgated in 2005. The D.C. Circuit struck down CAIR in July 2008, but later that year, the court reinstated CAIR and directed the EPA to issue a new rule to implement Clean Air Act requirements concerning interstate air pollution.

CSAPR was finalized in July 2011, but the D.C. Circuit on Dec. 30 stayed the rule just two days before it was set to go into effect, ordering the EPA to continue administering the previously promulgated CAIR until a final decision could be made on the merits of the rule. The motions considered by the court in its Aug. 21 order stemmed from 45 separate appeals from several companies, industry and environmental groups, and 15 states. Nineteen parties had filed motions to stay the rule. Nine states, the District of Columbia, five major cities, and a few power companies had intervened in support of the EPA.

And more delays were inevitable, said attorney Michael Cooke, an administrative law specialist affiliated with the law firm Greenberg Traurig’s Tampa office.

"It could take several weeks for the court to decide whether to rehear the case, and the time frame to file for certiorari review will not commence until after the court acts on the petition for rehearing. So it could be well into December or even later until it is clear what, if any, review might occur at the U.S. Court of Appeals, and it could take even longer to see if certiorari review would be sought and granted," he said.

Meanwhile, the possibility that the federal court would rehear the case was not unfounded, he said. "Rehearings generally are not favored by the court, but there was a strong dissent in the case that suggested the majority opinion conflicted with prior opinions of the court. This is one of the reasons that can be used to justify a rehearing and is one of the arguments EPA makes in its petition."

Sources: POWERnews, EPA, Greenberg Traurig

—Sonal Patel, Senior Writer (@POWERmagazine)