By Lesley Foxhall Pietras

On October 5, 2012, EPA filed a petition for en banc rehearing of the D.C. Circuit’s August 21, 2012 panel decision vacating EPA’s Cross-State Air Pollution Rule (CSAPR). The panel, in a 2-1 decision authored by Judge Kavanaugh, held that CSAPR exceeded EPA’s statutory authority under the Clean Air Act (CAA) in two independent respects. First, the panel concluded that CSAPR may require upwind States to reduce their emissions by more than their own significant contributions to a downwind State’s nonattainment, contrary to the statute. Second, the panel concluded that EPA lacked authority to implement the required emissions reductions through Federal Implementation Plans (FIPs), rather than affording the States an initial opportunity to implement the reductions through State Implementation Plans. Read our previous blog entry on this decision here.

In its petition, EPA argues that the panel’s FIP holding conflicts with other D.C. Circuit decisions by reaching out to “invalidate EPA actions that were not before the Court and for which the statutory review period had previously run” and by “exceeding the Court’s proper role in statutory interpretation by rewriting the plain language of the Act.” Petition for Rehearing En Banc at 3 (pdf). Additionally, EPA contends the panel’s “‘significant contribution’ analysis misapplies the Act’s waiver and exhaustion requirements and ignores settled Circuit precedent in finding an unwritten proportionality requirement in the statute.” Id. at 9.

Rehearing en banc “is not favored and ordinarily will not be ordered” unless necessary to “maintain uniformity of the court’s decisions” or the proceeding involves a question of “exceptional importance.” Fed. R. App. P. 35(a). No response may be filed to a petition for an en banc reconsideration unless ordered by the court. Fed. R. App. P. 35(e).