Judges Likely To Grant EPA Bid For Utility MACT Remand Without Vacatur

摘要

Appellate judges hearing Dec. 4 oral argument over EPA's power plant air toxics rule appear likely to grant the agency's request to remand it to EPA while the agency finalizes a cost review of the regulation rather than vacating it entirely as sought by the rule's critics, but the judges might also set a strict deadline for completing the cost study. At least two of the judges of the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit questioned the potential disruption to the power sector from vacating the rule, compared to leaving it in place while EPA pursues the cost assessment. They indicated that precedent established in the remand without vacatur of the agency's Clean Air Interstate Rule (CAIR) and a Nuclear Regulatory Commission (NRC) case warrant remand.