The Mercury Rule Lives To Fight Another Day: Vacatur Is Very Much Out of Fashion

Yesterday, the D.C. Circuit Court of Appeals refused to vacate EPA’s Mercury mercuryand Air Toxics Standards.  The decision was not a surprise.  As I noted earlier this fall, there is a definite trend towards refusing to vacate complex EPA rules.  Where the rule is sufficiently complicated and EPA can tell any kind of credible story that maintaining a slightly tarnished rule is better than no rule at all, or leaving an outdated rule in place, I think that vacatur is now more the exception than the norm.

What will happen in the long run remains uncertain.  Judge Kavanaugh joined the decision, but he’s hardly a safe bet to affirm the MATS rule on the merits after EPA has finished addressing the cost/benefit concerns raised by the Supreme Court. Nonetheless, I still think that EPA should win.

 

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