United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided December 23, 2008

No. 05-1244

STATE OF NORTH CAROLINA,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

UTILITY AIR REGULATORY GROUP, ET AL.,

INTERVENORS

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

On Petitions for Rehearing

Before: SENTELLE, Chief Judge, and ROGERS and BROWN,
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Circuit Judges.

Opinion for the Court filed PER CURIAM.

Opinion concurring in part filed by Circuit Judge ROGERS.

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, 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 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 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,

489 F.3d 1250, 1262 (D.C. Cir. 2007) (noting this court’s prior
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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 issue].” Envtl. Def. Fund, Inc. v.

Adm’r of the United States EPA, 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 of

CAIR so that EPA may remedy CAIR’s flaws in accordance

with our July 11, 2008 opinion in this case. 
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, 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, 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, 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,

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 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.