EPA’s “Clean Air Mercury Rule” and the Dog Days of Summer

In late May, the full U.S. Court of Appeals for the D.C. Circuit denied EPA and utility industry requests to rehear the original court panel’s unanimous decision overturning EPA’s so-called Clean Air Mercury Rule (CAMR) for power plants.  I said at the time that I would be astounded if the Solicitor General’s office walked this dog up to the Supreme Court’s steps to soil those grounds.  The utility industry on the other hand follows different public health practices -- so the industry probably would ask the Supreme Court to hear the case. 

On Friday, the Bush administration quietly filed a motion with the Supreme Court seeking 30 more days, until September 17th, to petition the Supreme Court for a writ of certiorari to hear the case.  This filing suggests that the Bush administration is still circling the block, begging the Solicitor General to come outside to take the leash.

It is a fair bet that the Solicitor General’s office has resisted those desperate entreaties thus far, however, which is likely a partial explanation for Friday's extension request. The filing declares that the Solicitor General has not even determined whether to file a petition for a writ of certiorari in this case.  (The utility industry followed suit this evening and sought the same extension as the Bush administration.)
When the administration appealed the D. C. Circuit’s scathing ruling overturning CAMR, not one judge on the entire D.C. Circuit voted to grant rehearing. There was no sound legal basis to reverse the court’s ruling then and there is no basis to do so now. 
Indeed, since the court’s February 8th CAMR decision in State of New Jersey v. EPA, the D.C. Circuit has now vacated in its entirety the EPA’s Clean Air Interstate Rule (CAIR). This is important to the fate of CAMR as well: in addition to being squarely unlawful, CAMR itself required no mercury reductions for its entire first phase, from 2005 to 2014. Instead, EPA admitted to relying totally on incidental mercury reductions achieved under the first phase of CAIR’s SO2 and NOx cap-and-trade program. 

With CAIR now vacated, CAMR represents an even more starkly ineffectual approach to mercury regulation than it did before the court’s February 8th ruling. (And of course CAMR ignored the dozens of other dangerous air toxics released by power plants.) Thus, even in the highly improbable event that the Supreme Court were to reverse the D.C. Circuit’s CAMR ruling, EPA under the next administration would be forced to re-open and overhaul CAMR anyway, due to the vacatur of CAIR.

But as I’ve pointed out previously, for the administration CAMR has never been about doing what’s legal or responsible or protective – it’s been about delay: delaying deep and timely reductions in all hazardous air pollutants from power plants by pursuing a knowingly unlawful strategy. I suspect that the administration’s political forces do not care much more about the impact of CAIR’s vacatur on CAMR than they did about the plainly illegal design of CAMR from the start: what matters to these forces and the utility industry is succeeding with their nonsensical “Queen of Hearts” legal theories in order to avoid the deep and timely reductions in all hazardous air pollutants from power plants that the Clean Air Act requires.  
The remote possibility of the Supreme Court granting cert. in the CAMR litigation; the tax dollars and government and private resources wasted on the administration’s obsessive pursuit of that goal; and the need to redo CAMR anyway from scratch in the next administration even if the administration prevails -- all of this counsels against filing cert. petitions with the Supreme Court at all. 

EPA should take this dog back to its office and let it romp around with the litter of other scruffy dogs that the courts have rejected.