Thursday, December 4, 2008

This Time It Looks Like CAMR Is Really Dead, No, Really!

A short excerpt from a subscription only article on explains;

High Court CAMR Deadline Extension Allows For Likely Obama Withdrawal

The Supreme Court's decision to give states and activists more time to respond to EPA and industry petitions for certiorari in their appeal of the clean air mercury rule (CAMR) vacatur boosts state and activist efforts to kill the rule because their deadline to respond is after President-elect Barack Obama takes office, creating an opportunity for his administration to withdraw the government's cert petition altogether.

The high court Dec. 1 granted New Jersey's request to extend the deadline for responses to the cert petitions, which seek review of the agency's mercury rule, vacated earlier this year by federal court.

The new Jan. 21 deadline opens the door for the Obama administration to act immediately to withdraw the Department of Justice's (DOJ's) petition. Obama is expected to withdraw the appeal because close advisors have opposed CAMR, which established a cap-and-trade program to address mercury emissions from power plants. For example, former EPA Administrator Carol Browner, who sits on Obama's transition team, has urged an evaluation of the need for a strict new mercury emissions control program.
if Obama were to withdraw the petition on his inauguration day, that would send a strong signal that DOJ is conducting an about face on its strategy of defending controversial Bush EPA policies, supporting recent arguments by former Justice officials for just such a move. Lois Schiffer, a senior DOJ official under Clinton, and Richard Lazarus, who worked in the department during the administrations of Jimmy Carter, Ronald Reagan and George H.W. Bush, recommended the abandonment of dubious legal arguments even in ongoing cases under the next administration, in a recent article in the Harvard Law & Policy Review.

While some observers say a change in legal arguments could damage DOJ politically, Schiffer and Lazarus say, “[I]n some circumstances changes of position in either enforcement or defended cases may well be warranted.”

The case for CAMR has been a long shot all along. It has taken on a catlike identity in that its death has been proclaimed several times. But the lives are running out and MACT seems to be in order for mercury controls.

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