ELR Citation: ELR 20306
No(s). 05-1244 (D.C. Cir. Dec 23, 2008)

The D.C. Circuit reversed its earlier decision to vacate and remand the Clean Air Interstate Rule (CAIR) and instead remanded the rule without vacatur. It is appropriate to remand without vacatur on particular occasions where vacatur would at least temporarily defeat the enhanced protection of the environmental values covered by the U.S. Environmental Protection Agency rule at issue. Here, notwithstanding the relative flaws of CAIR, allowing CAIR to remain in effect until it is replaced by a rule consistent with the court's prior opinion would at least temporarily preserve the environmental values covered by CAIR. Accordingly, a remand without vacatur is appropriate in this case.

[The prior decision in this litigation can be found at 38 ELR 20172.]