ELR Citation: 42 ELR 20260
No(s). 09-1322 (D.C. Cir. Dec 20, 2012)

The D.C. Circuit denied a petition for rehearing of an earlier decision in which it upheld four EPA rulemakings governing greenhouse gases. EPA issued the rules following the U.S. Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497, 37 ELR 20075 (2007), in which the Court clarified that greenhouse gases meet the definition of an air pollutant under the CAA. Although the underlying policy questions and the outcome of this case are undoubtedly matters of exceptional importance, the legal issues are straightforward, requiring no more than the application of clear statutes and binding Supreme Court precedent. Accordingly, there is no cause for en banc review. Two dissenting judges, however, would have granted a rehearing. Judge Brown would hold that Massachusetts does not apply to the CAA Title V and prevention of significant deteriration (PSD) program. Judge Kavanaugh would hold that in the context of the PSD program, “any air pollutant” refers not to all pollutants regulated under the CAA, but only to the six NAAQS pollutants.