The U.S. Environmental Protection Agency has filed a petition seeking en banc review of the August 21, 2012, decision by a panel of the U.S. Court of Appeals for the District of Columbia Circuit that vacated EPA’s Cross-State Air Pollution Rule (“CSAPR”). (We posted the court’s opinion on August 21 here.) The EPA argues in its petition that the decision of the court’s panel is inconsistent with prior circuit precedent, and that the court went beyond its jurisdiction and proper role in the way it interpreted and applied the Clean Air Act to CASPR. EPA also argues that the panel relied on arguments that had been waived by the petitioners below.
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.
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.
Based on the August 21 opinion that vacated CSAPR, some utilities immediately suspended implementation of pollution control projects that were needed to comply with the rule. Even if some form of review ultimately is granted, and the current decision is reversed, it would seem likely that reasonable new compliance deadlines would have to be set given that the court stayed the rule before it even became effective and then ultimately vacated it.