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EPA Faces Suits Over State Haze Plans As It Awaits Decision On Petition For Rehearing On Cross-State Air Pollution Ruling

Allison Torrence   By Allison Torrence, Associate, Jenner & Block

As discussed previously in this blog, Federal Appeals Court Strikes Down Cross-State Air Pollution Rule, the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") vacated the Cross-State Air Pollution Rule (the "Transport Rule") on August 21, 2012, in EME Homer City Generation, LP v. Environmental Protection Agency, et. al, Case No. 11-1302. The United States Environmental Protection Agency ("EPA") has petitioned for rehearing en banc in the D.C. Circuit. EPA claims in its Petition For Rehearing En Banc that the case deals with issues of "exceptional importance" due to the enormous public health and regulatory significance of the Transport Rule. EPA argues that the three-judge panel that decided to vacate the Transport Rule acted inconsistent with D.C. Circuit precedent and in violation of the Clean Air Act. Notably, one of the three judges on the panel, Judge Rogers, dissented from the majority opinion. The D.C. Circuit has ordered the parties opposing the Transport Rule to respond to EPA's petition by October 29, 2012, after which it will decide whether to grant EPA's petition and hear the case in front of all eight judges in the D.C. Circuit.

Despite the ongoing litigation regarding the validity of the Transport Rule, environmental groups, including the Sierra Club, have recently filed a number of lawsuits challenging various States' haze reduction plans based on the fact that the haze reduction plans improperly rely on the Transport Rule. Under the Clean Air Act, States are required to develop State Implementation Plans ("SIPs") that address emissions that contribute to regional haze. As a part of their SIPs, States must require Best Available Retrofit Technology ("BART") for certain types of sources that emit pollutants that impair visibility. Earlier this year, EPA issued a final action allowing States participating in the Transport Rule emissions trading programs to use those programs in place of source-specific BART for sulfur dioxide and/or nitrogen oxide emissions from power plants that are subject to the regional haze rule. Sierra Club and other environmental organizations oppose the use of emissions trading programs to meet the haze rules, and have filed petitions for review in numerous Circuit Courts seeking a determination that EPA's policy is invalid because the D.C. Circuit found the Transport Rule to be legally defective.

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The Sierra Club has acknowledged that its petitions in the various Circuit Courts are "protective Petition[s] for Review" because Sierra Club believes that the D.C. Circuit is the appropriate forum to decide the propriety of EPA's actions in these cases. Thus, Sierra Club has a petition for review pending in the D.C. Circuit, Utility Air Regulatory Group v. EPA, Case No. 12-1342. The D.C. Circuit case has been held in abeyance until that court issues a determination on EPA's petition for rehearing en banc.

Download a free copy of the unenhanced version of the D.C. Circuit's ruling in EME Homer City Generation, LP v. Environmental Protection Agency, et. al, Case No. 11-1302.

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