On December 10, 2010, the United States Court of Appeals for the D.C. Circuit (“the Court”) denied motions by a broad swath of industry and several states to stay EPA’s greenhouse gas (“GHG”) regulatory program. The motions asked the Court to stay the appeals pending the Court’s disposition of the numerous appeals of these regulations on the merits.
The motions applied to four EPA rules: the endangerment finding, the motor vehicle GHG rule, the Tailoring Rule, and the Johnson Memorandum Reconsideration rule (see the September 17, 2010 edition of the WER). The Court’s one-paragraph order stated that “Petitioners have not satisfied the stringent standards required for a stay pending court review…Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are ‘certain,’ rather than speculative, or that the ‘alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.’”
The order means that GHG regulation under the Prevention of Significant Deterioration (“PSD”) and Title V programs will go into effect as scheduled on January 2, 2011 while the appeals of the rules proceed to briefing on the merits. Under the Court’s order, the merits appeals of all of the rules will be heard by the same panel, as industry had urged. In a separate order, the Court required the parties to submit a format for briefing the cases by January 3, 2011. At this point, a decision on the merits of the appeals is not likely to occur in 2011, but more will be known when the parties submit briefing formats and the Court sets a briefing schedule.