EPA’s Clean Air Act rules pulling six major greenhouse gases into CAA regulation of mobile sources, as well as major stationary sources undergoing New Source Review for Prevention of Significant Deterioration and Title V permitting, began January 2, 2011. On December 10, 2010, the D.C. Circuit Court of Appeals rejected pleas to stay the EPA’s suite of GHG rulemaking pending judicial review, finding that the petitioners simply had not satisfied the stringent standards required for a stay pending court review. Specifically, with regard to each of the challenged rules, the D.C. Circuit held that petitioners had not shown that the harms they alleged were “certain,” rather than speculative, or that the alleged harms would result directly from the EPA’s actions which they sought to enjoin. The suite of GHG rules under judicial review that will not be stayed pending this review include EPA’s December 7, 2009, Endangerment and Cause or Contribute Findings; the April 1, 2010, mobile source emission standards; the May 13, 2010, Tailoring Rule; and the March 29, 2010, “timing memo” also referred to as the “Johnson Memorandum.” Moreover, the legislative attempts to block the rules appeared to end on December 17, 2010, when Sen. Jay Rockefeller reportedly decided to stop pushing for a legislative two-year delay in EPA’s rule implementation due to lack of support.
This article authored by McAfee & Taft Attorney: Mary Ellen Ternes.
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