Turtle Talk

Here is the order-denying-rehearing-en-banc-petitions-05-1097.

Appellate Court Rejects EPA, Industry Bid To Overturn Mercury Ruling

A key appellate court has rejected EPA and utility industry requests to rehear and overturn a ruling from a three-judge panel vacating the agency’s clean air mercury rule (CAMR), leaving supporters of the contentious rule with the option to either abandon it altogether or appeal the case up to the Supreme Court.

Environmentalists, however, doubt that the government will appeal the ruling to the high court, but leave open the option that industry may. “I would be astounded if the Solicitor General’s office walked this dog up to the Supreme Court’s steps to soil those grounds. The utility industry on the other hand follows different public health practices,” John Walke, clean air director at the Natural Resources Defense Council, said in a May 20 statement.

The U.S. Court of Appeals for the District of Columbia Circuit May 20 denied EPA’s petition for a rehearing en banc of the Feb. 8 ruling in State of New Jersey, et al., v. EPA that struck down the agency’s rule to establish a cap-and-trade scheme for reducing mercury emissions. The court also rejected a March 24 request by the Utility Air Regulatory Group — which represents electric generating companies — for a full panel rehearing.

EPA appealed the case despite what one informed source has said was “violent opposition” from mid-level staff in the agency’s air and general counsel office and from Department of Justice officials. “Clearly, someone higher up leaned on them to file,” the source previously said.

Environmentalists are welcoming the decision by the court to reject the requests for rehearing and en banc review of the court’s February decision which held that EPA illegally removed power plants from the list of sources of hazardous air pollutants under section 112 of the Clean Air Act. The court vacated CAMR, forcing EPA to start fresh on new rules for power plant mercury emissions.

The ruling has created havoc for state and EPA regulators, with environmentalists moving to halt pending permits and reverse existing permits at scores of power plants nationwide to force them to adopt strict site-specific mercury emissions controls.

Industry sources as recently as this month were optimistic that the court would accept the rehearing requests, pointing to the court’s April request for responses from state and environmental groups to explain why the full court should not review the ruling as a promising sign. One industry source said the request “hints that a majority of the court thinks the [three-judge] panel got it wrong.”

Environmentalists accused industry of “nonsense” optimism and fully expected the court to reject the requests for rehearing. — Anthony Lacey