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'Pretty Big Deal': D.C. Circuit Stays EPA Rule

By Dyanna Quizon, Esq. on January 04, 2012 | Last updated on March 21, 2019

In a showing of a rarely-used federal appeals court power, the D.C. Circuit Court of Appeals placed a stay on the Environmental Protection Agency's Cross-State Air Pollution Rule (CSAPR), which targets power plant emissions that cross state lines.

The stay, which leaves an existing air pollution reduction program in place until the court can assess legal challenges to the rule, has been touted as "a pretty big deal" since the court rarely stays EPA rules.

"These three judges believed that there was a good likelihood that this rule was flawed in some way, and we know they wouldn't have issued the stay unless that were the case," Jeff Holmstead, an attorney for Bracewell & Guiliani LLP, told the Bureau of National Affairs.

The EPA, however, noted that the stay order did not address the merits of the rule, and the agency was still confident the court would rule in its favor.

Although the D.C. Circuit did not specifically address its reasons for granting the petitioners’ motions to stay, it did state that they satisfied the general standards required, such as the likelihood that they would prevail on the merits of the case and the probability of suffering irreparable injury if the stay was not granted.

The petitioners include several power plants who argue that the rule’s requirement to reduce the emissions of nitrogen oxides and sulfur dioxide that cross state lines would hurt their businesses and production of electrical power.

At least 36 separate entities, including 15 states, had petitioned the D.C. Circuit to enjoin or review CSAPR since October.

Until the court hears the case, likely in April, the EPA’s predecessor program, the Clean Air Interstate Rule, will stay in place. And power plants will continue to run their coal-fired electric generating units.

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