Last Wednesday, the D.C. Circuit Court of Appeals remanded EPA’s rule exempting stationary engines that operate up to 50 hours per year to supply non-emergency service to power providers from the EPA NESHAP for reciprocating internal combustion engines. Why is that news?
Because, once more, a court has acceded to EPA’s request that it remand without vacatur, leaving the rule in place. We’re now seeing something of a trend towards remand without vacatur. That trend is worthy of note. What does it mean? It means that, while EPA may not be doing a very good job persuading the courts that its rules are on solid legal footing, EPA is doing a good job persuading courts that the regulatory issues are so complicated that, once EPA promulgates a rule – almost any rule – the certainty of having a rule in place outweighs, at least in the short run, the costs of allowing EPA to continue to implement a rule that has been found invalid.
I’ll bet Rand Paul would have something to say about this. For my part, it’s a welcome level of practicality from the courts. We’re not going back to an 18th century agrarian economy. These issues are complicated and some level of regulatory certainty really is important.
However, that doesn’t mean we have to be happy about the situation.