From Michael Cooke of GT Tampa:

The U.S. Environmental Protection Agency has filed a petition seeking en banc review of the August 21, 2012, decision by a panel of the U.S. Court of Appeals for the District of Columbia Circuit that vacated EPA’s Cross-State Air Pollution Rule (“CSAPR”). (We posted the court’s opinion on August 21 here.) The EPA argues in its petition that the decision of the court’s panel is inconsistent with prior circuit precedent, and that the court went beyond its jurisdiction and proper role in the way it interpreted and applied the Clean Air Act to CASPR. EPA also argues that the panel relied on arguments that had been waived by the petitioners below.

It could take several weeks for the court to decide whether to rehear the case, and the time frame to file for certiorari review will not commence until after the court acts on the petition for rehearing. So it could be well into December or even later until it is clear what, if any, review might occur at the U.S. Court of Appeals, and it could take even longer to see if certiorari review would be sought and granted.

Rehearings generally are not favored by the court, but there was a strong dissent in the case that suggested the majority opinion conflicted with prior opinions of the court. This is one of the reasons that can be used to justify a rehearing and is one of the arguments EPA makes in its petition.

Based on the August 21 opinion that vacated CSAPR, some utilities immediately suspended implementation of pollution control projects that were needed to comply with the rule. Even if some form of review ultimately is granted, and the current decision is reversed, it would seem likely that reasonable new compliance deadlines would have to be set given that the court stayed the rule before it even became effective and then ultimately vacated it.

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Photo of Caleb Holmes Caleb Holmes

Caleb’s practice focuses on complex environmental litigation and environmental compliance. Caleb has represented clients in state and federal courts and in administrative proceedings. In his environmental litigation practice, Caleb often represents corporate clients in cost recovery, contribution and government enforcement actions under Comprehensive

Caleb’s practice focuses on complex environmental litigation and environmental compliance. Caleb has represented clients in state and federal courts and in administrative proceedings. In his environmental litigation practice, Caleb often represents corporate clients in cost recovery, contribution and government enforcement actions under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Caleb has litigated such matters through trial and has also helped clients negotiate and settle matters. He has worked with clients on cases involving a wide variety of contaminants, including but not limited to PCBs, PFAS, and dioxins. Caleb also has broad experience litigating complex commercial litigation, including products liability and mass tort/toxic tort matters. He has a depth of experience with all aspects of discovery, including work with experts, taking and defending depositions, motion practice, trial preparation and settlement negotiation.

Caleb provides practical advice to clients in the acquisition and disposition of businesses and assets and the re-development of brownfield sites. He works with clients to achieve compliance with state-specific voluntary cleanup programs, including Pennsylvania’s Land Recycling Program (Act 2).

Caleb counsels clients on compliance with a broad range of federal and state environmental laws, including RCRA, the Clean Air Act, the Clean Water Act, and a host of other federal and state environmental laws.

In addition to his legal work, Caleb is active in various professional and civic organizations. He is currently serving as the Council’s Secretary for the Pennsylvania Bar Association’s Environmental and Energy Law Section.