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.