More Twists and Turns in the CAIR Saga

Has the D.C. Circuit had second thoughts about its decision to vacate EPA’s Clean Air Interstate Rule? As we noted last month, after Congress pretty much threw up its hands at efforts to salvage some part of CAIR, EPA, states and private stakeholder were left wondering how to proceed. Now, the Court may have provided a life-line to CAIR. In surprise Order issued last week, the Court requested additional briefing on the scope of its decision to vacate the rule.

The order does not suggest any retreat by the Court from its decision that the regulations have several serious flaws. However, on the remedy side, the Court appears to have realized that no one was really expecting CAIR to be vacated in its entirety – and that no one knows what to do if the vacatur stands. Thus, the Order requests briefing on two subjects: (1) whether indeed any party seeks vacatur and (2) whether the court should stay its mandate until EPA promulgates a revised rule.

Of course, the Court is not bound to any specific approach just because it has asked for briefing. However, it seems unlikely that the Court would request the briefing if it did not at the least have serious concerns regarding the impact its vacatur of CAIR would have on the stability and predictability of regulations in this area. Once more, we can only say: stay tuned.