I follow mercury legislation pretty closely. When the three judge panel of the DC Circuit Court of Appeals vacated the Clean Air Mercury Rule (CAMR) on Feb 8th I asked in my column headline, What's Next? I considered an appeal en banc, asking the full court to rule. I even considered an appeal to the Supreme Court. I speculated that neither appeal would happen because the panel of judges in the initial ruling, a) included judges deemed both pro environment and pro business, b) the ruling was unanimous and swift, and c) the language in the opinion was very strong and critical of the EPA's positions.
It seemed the die was cast, the EPA and the country were going to move toward a MACT standard for mercury. In support of that prognosis the same Court, on March 14th, fully 2 weeks ahead of schedule, granted petitioners request for issuance of a mandate in the CAMR case. This mandate all but sealed the deal. It seems the operative words in that last sentence are "all but".
As proof this last minute appeal on behalf of the EPA by the DOJ caught everyone by surprise I refer you to the website of a respected industry consulting group RMB Consulting and Research. RMB consults for, amongst others, the Utility Air Regulatory Group (UARG), who simultaneously with the EPA appeal, asked the Court to reconsider the Feb 8th ruling. However, right on the RMB site (removed as of 3/28) it states (said) in bold letters CAMR is Officially Dead (3/19/08). I point this out not to jab at RMB, hardly, they are a well respected and plugged in consulting group. I point it out because apparently not even they knew this appeal was coming. They do (did) point out in their post that a petition for rehearing was still possible and if granted would recall the mandate, but the headline they chose was more in line with what we all were thinking.
It is unclear to me whether the petition for rehearing has been granted. We will know more in a few days. But you have to feel for the utilities who seem to be going up and down like yo-yos as this all plays out in the courts. I'll try to keep you on top of this story as it unfolds.
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2 comments:
I too am surprised by this last minute appeal. However, maybe we shouldn't be surprised considering the Bush Administrations past stubborn behavior. In any case I still think it is unlikely that the court will agree to hear this case en banc. En Banc hearings are disfavored by the court and the EPA and industry group must convince the Court that this decision is of such exceptional importance that it is worth the courts time to be heard by all the active judges on the court.
I would sure like to see the court filings by the EPA and the industry group. Unfortunately, the DC Court does not yet post all filings on PACER.
Court filings, courtesy of RMB Consulting are available at:
http://tinyurl.com/2wa7ln
and
http://tinyurl.com/62bw3a
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