In the days following the decision by the Court of Appeals for the District of Columbia to vacate EPA’s Clean Air Interstate Rule – CAIR – regulators, industry, and environmentalists have been attempting to answer one fairly basic – and quite critical – question. What now? Although a variety of parties had challenged various aspects of CAIR, it seems that no one was quite prepared for the decision by the Court of appeals that the entire rule had to be vacated, due to “several fatal flaws” in the rule. CAIR required 28 states and the District of Columbia to require additional reductions in NOx and SO2. Elimination of CAIR leaves a gaping hole in the regulatory landscape for these important criteria pollutants.
Recent development provide at least some idea what the post-CAIR landscape may look like. First, on September 2, 2008, EPA sent letters to states subject to CAIR asking them to revive their NOx Budget Trading Programs (“NBPs”)which had been promulgated pursuant to EPA’s NOx SIP Call. A number of states subject to CAIR had eliminated to scheduled to sunset their NBPs, because CAIR made them unnecessary. Repromulgation or maintenance of NBPs would at least provide a backstop for NOx regulation in CAIR states.
The other venue for post-CAIR planning is Congress. The Bush administration has requested that Congress simply enact CAIR into legislation. Congressional Democrats have opposed this approach, fearing that enacting CAIR would make it more difficult to enact more stringent limitations down the road. Recently, Senator Tom Carper and Representative Rick Boucher apparently have reached agreement on CAIR legislation. Their approach would limit the legislation to SO2 and NOx. The proposed legislation would implement the first phase of CAIR for these pollutants, requiring a 45% reduction in SO2 and a 50% reduction in NOx.
However, in order to get the legislation enacted during the 110th Congress, Carper and Boucher are looking to utilize expedited rules that would require the approval of 2/3 of the House and unanimous consent in the Senate. Time will tell whether unanimous agreement that something has to be done will translate into unanimous agreement in the Senate on a particular piece of legislation. Stay tuned.