Back in July, the D.C. Circuit vacated the Biogenic CO2 Deferral Rule, in which EPA exempted CO2 emitted by biological materials from its new greenhouse gas permitting program. Normally, a “vacatur” is deadly for a rule – once a rule is vacated, courts must pretend as though it never existed at all. But the D.C. Circuit withheld the issuance of its “mandate” for the vacatur of the Deferral Rule to allow time for the parties to file any petitions for rehearing. As a result, the rule is still legally effective, in spite of the court’s decision in July to vacate it.
Yesterday, the court issued a new order further delaying the rehearing process until after the Supreme Court decides whether to overturn EPA’s greenhouse gas permitting program entirely in UARG v. EPA. Accordingly, the Biogenic CO2 Deferral Rule will now remain legally effective for quite a while, likely until around October 2014, which is after the rule is set to expire on its own terms in July 2014.
Reliance on the rule now would be risky, since the court may still affirm the vacatur next year, issue its mandate, and leave facilities that relied on the rule in an uncertain position. However, the court’s order granting the extension should delay any legal attacks against facilities that relied on the rule prior to the vacatur.