On Friday, July 11, 2008, the D.C. Circuit Court vacated the Clean Air Interstate Rule (CAIR) and its associated Federal Implementation Plan (FIP) and remanded both to EPA. The Court granted several petitions raised by the plaintiffs and took issue with EPA’s rulemaking on several fronts. The Court stated that “no amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule.” The Court notes that the current regional NOx SIP Call trading program will continue because EPA planned to end this program after the 2008 ozone season only because it would be replaced by the CAIR NOx ozone season trading program in 2009. The Court added that the continued implementation of the NOx SIP Call trading “should mitigate any disruption” for NOx as a result of the vacatur of CAIR. EPA must either accept the vacatur of CAIR or seek to have the D.C. Circuit Court’s decision reversed through any of several judicial processes.
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