STATE OF NORTH CAROLINA, PETITIONER v. ENVIRONMENTAL

PROTECTION AGENCY, RESPONDENT; UTILITY AR REGULATORY

GROUP, ET AL., INTERVENORS

No. 05-1244 Consolidated with 05-1246, 05-1249,05-1250, 05-1251,05-1252, 05-1253,

05-1254, 05-1256, 05-1259, 05-1260, 05-1262, 06-1217, 06-1222, 06-1224, 06-1226,

06-1227, 06-1228, 06-1229, 06-1230, 06-1232, 06-1233, 06-1235, 06-1236, 06-1237,

06-1238, 06-1240, 06-1241, 06-1242, 06-1243, 06-1245, 07-1115

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

550 F.3d 1176; 384 U.S. App. D.C. 70; 2008 U.S. App. LEXIS 26084; 39 ELR 20306

December 23, 2008, Decided

SUBSEQUENT HISTORY: Related proceeding at

Sierra Club & Env't N.C. v. EPA, 313 Fed. Appx. 331,

2009 U.S. App. LEXIS 4531 (D.C. Cir., Mar. 5, 2009)

PRIOR HISTORY: North Carolina v. EPA, 382 U.S.

App. D.C. 167, 531 F.3d 896, 2008 U.S. App. LEXIS

14733 (2008)

COUNSEL: [***1] For State of North Carolina,

Petitioner: James C. Gulick, Marc D. Bernstein, J. Allen

Jernigan, Attorney General's Office of State of North

Carolina, Raleigh, NC;

For Environmental Protection Agency, Respondent:

Norman Louis Rave, Jr., U.S. Department of Justice,

Washington, DC; Steven E. Silverman, Attorney, U.S.

Environmental Protection Agency, (EPA) Office of

General Counsel, Washington, DC; John Charles Cruden,

Assistant Attorney General, U.S. Department of Justice,

(DOJ) Environment & Natural Resources Division,

Washington, DC; Angeline Purdy, U.S. Department of

Justice, (DOJ) Environmental Defense Section,

Washington, DC; Geoffrey L. Wilcox, U.S.

Environmental Protection Agency, (EPA) Office of

General Counsel, Washington, DC.

For Utility Air Regulatory Group, Intervenor for

Respondent: Norman William Fichthorn, Allison D.

Wood, Hunton & Williams LLP, Washington, DC.

For Natural Resources Defense Council, Ohio

Environmental Council, U.S. Public Interest Research

Group, Intervenor for Respondents: John DuVal Walke,

Esq., Natural Resources Defense Council, Washington,

DC.

For Environmental Defense, Intervenor for Respondent:

Sean H. Donahue, Attorney, Law Office of Sean H.

Donahue, [***2] Washington, DC; Vickie Lynn Patton,

Attorney, Environmental Defense Fund, Boulder, CO.

For Midwest Generation, LLC, Intervenor for

Respondent: Claudia Margaret O'Brien, Nathan Harold

Seltzer, Latham & Watkins LLP, Washington, DC.

For National Mining Association, Intervenor: Peter S.

Glaser, Troutman Sanders, LLP, Washington, DC;

Harold Patrick Quinn, Jr., Washington, DC.

For Alabama Power Company, Intervenor: C. Grady

Moore, III, Philip Stephen Gidiere, III, Balch &

Bingham, Birmingham, AL.

For State of New York, Amicus Curiae: J. Jared Snyder,

Barbara D. Underwood, Attorney General's Office of

Page 1
State of New York, New York State Department of Law,

Albany, NY.

For State of Connecticut, Amicus Curiae: Matthew I.

Levine, Attorney General's Office of State of

Connecticut, Hartford, CT; J. Jared Snyder, Attorney

General's Office of State of New York, New York State

Department of Law, Albany, NY.

For State of New Jersey, Amicus Curiae: Ruth Elizabeth

Carter, Jean P. Reilly, Attorney General's Office of State

of New Jersey, Division of Law, Trenton, NJ; J. Jared

Snyder, Attorney General's Office of State of New York,

New York State Department of Law, Albany, NY.

For State of Delaware, State of Illinois, [***3] State of

Massachusetts, State of Maryland, State of New

Hampshire, State of New Mexico, State of Rhode Island,

District of Columbia, Amicus Curiae for Petitioners: J.

Jared Snyder, Attorney General's Office of State of New

York, New York State Department of Law, Albany, NY.

For State of Ohio, Amicus Curiae for Respondent: Dale

T. Vitale, Attorney General's Office of State of Ohio,

Columbus, OH.

JUDGES: Before: SENTELLE, Chief Judge, and

ROGERS and BROWN, Circuit Judges.

OPINION

[*1177] [**71] On Petitions for Rehearing

PER CURIAM: In these consolidated cases, we

considered petitions for review challenging various

aspects of the Clean Air Interstate Rule ("CAIR"). On

July 11, 2008, we issued an opinion, in which we found

"more than several fatal flaws in the rule." North

Carolina v. EPA, 382 U.S. App. D.C. 167, 531 F.3d 896,

901 (D.C. Cir. 2008) (per curiam). In light of the fact that

the Environmental Protection Agency ("EPA") adopted

CAIR as an integral action, we vacated the rule in its

entirety and remanded to EPA to promulgate a rule

consistent with our opinion. Id. at 929-30.

On September 24, 2008, Respondent EPA filed a

petition for rehearing or, in the alternative, for a remand

of the case without vacatur. On October 21, 2008, we

issued [***4] an order on our own motion directing the

parties to file a response to EPA's petition. (Order at 1,

Oct. 21, 2008.) We also required the parties to "address

(1) whether any party is seeking vacatur of the Clean Air

Interstate Rule, and (2) whether the court should stay its

mandate until Respondent [EPA] promulgates a revised

rule." Id. Respondent EPA was given leave to "reply to

the question whether [*1178] [**72] a stay of the

court's mandate in lieu of immediate vacatur would

suffice." Id.

Having considered the parties' respective positions

with respect to the remedy in this case, the court hereby

grants EPA's petition only to the extent that we will

remand the case without vacatur for EPA to conduct

further proceedings consistent with our prior opinion.

This method of disposition is consistent with this court's

precedent. See Natural Res. Def. Council v. EPA, 376

U.S. App. D.C. 414, 489 F.3d 1250, 1262 (D.C. Cir.

2007) (noting this court's prior practice of remanding

without vacatur). This court has further noted that it is

appropriate to remand without vacatur in particular

occasions where vacatur "would at least temporarily

defeat . . . the enhanced protection of the environmental

values covered by [the EPA rule at [***5] issue]." Envtl.

Def. Fund, Inc. v. Adm'r of the United States EPA, 283

U.S. App. D.C. 169, 898 F.2d 183, 190 (D.C. Cir. 1990).

Here, we are convinced that, notwithstanding the relative

flaws of CAIR, allowing CAIR to remain in effect until it

is replaced by a rule consistent with our opinion would at

least temporarily preserve the environmental values

covered by CAIR. Accordingly, a remand without

vacatur is appropriate in this case.

In addition, some of the Petitioners have suggested

that this court impose a definitive deadline by which EPA

must correct CAIR's flaws. Notwithstanding these

requests, the court will refrain from doing so. Though we

do not impose a particular schedule by which EPA must

alter CAIR, we remind EPA that we do not intend to

grant an indefinite stay of the effectiveness of this court's

decision. Our opinion revealed CAIR's fundamental

flaws, which EPA must still remedy. Further, we remind

the Petitioners that they may bring a mandamus petition

to this court in the event that EPA fails to modify CAIR

in a manner consistent with our July 11, 2008 opinion.

See Natural Res. Def. Council, 489 F.3d at 1264

(Randolph, J., concurring).

We therefore remand these cases to EPA without

vacatur [***6] of CAIR so that EPA may remedy

CAIR's flaws in accordance with our July 11, 2008

opinion in this case.

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550 F.3d 1176, *; 384 U.S. App. D.C. 70, **;

2008 U.S. App. LEXIS 26084, ***2; 39 ELR 20306
ROGERS, Circuit Judge, concurring in granting

rehearing in part: In deciding on rehearing to remand

without vacating the final rule, the court has adhered to

its traditional position where vacating would have serious

adverse implications for public health and the

environment. NRDC v. EPA, 376 U.S. App. D.C. 414,

489 F.3d 1250, 1264 (D.C. Cir. 2007) (Rogers, J.,

concurring in part and dissenting in part); see, e.g., Envtl.

Def. Fund, Inc. v. Adm'r of the United States EPA, 283

U.S. App. D.C. 169, 898 F.2d 183, 190 (D.C. Cir. 1990).

When the court has ordered vacatur despite potential

adverse implications for public health and the

environment, it has usually provided an explanation, see

NRDC, 489 F.3d at 1265, and we did so here, North

Carolina v. EPA, 382 U.S. App. D.C. 167, 531 F.3d 896,

929-30 (D.C. Cir. 2008). We explained that vacatur was

appropriate because of the depth of CAIR's flaws, the

integral nature of the rule, and because other statutory

and regulatory measures would mitigate the disruption

caused by vacating the rule. Id. However, on rehearing,

EPA, petitioners, and amici states point to serious

implications that our previous remedy analysis, [***7]

including our consideration of mitigation measures, did

not adequately take into account. The parties' persuasive

demonstration, extending beyond short-term health

benefits to impacts on planning by states and industry

with respect to interference with the states' ability to meet

deadlines for attaining national ambient air quality

standards for PM2.5 and 8-hour ozone, shows that the

[*1179] [**73] rule has become so intertwined with the

regulatory scheme that its vacatur would sacrifice clear

benefits to public health and the environment while EPA

fixes the rule.

Page 3

550 F.3d 1176, *1178; 384 U.S. App. D.C. 70, **72;

2008 U.S. App. LEXIS 26084, ***6; 39 ELR 20306