The 8th Circuit Court of Appeals issued an Order on July 10th summarily denying USEPA’s Petition for Rehearing (see previous frESH blog post – USEPA Seeks Rehearing of the 8th Circuit’s Blending Decision) of its decision in Iowa League of Cities v. EPA. The denial leaves intact the 8th Circuit’s momentous opinion which vacated USEPA’s blending and mixing zone prohibitions (see previous frESH blog post analyzing the decision – 8th Circuit Vacates EPA’s Mixing Zone and Blending Prohibitions). The denial puts USEPA in a particularly difficult position. While USEPA will likely seek US Supreme Court review of the decision, it is equally unlikely that the Supreme Court will take up the case because there is no controversy among the Circuits–a result which would leave the 8th Circuit’s vacation stand. This will force USEPA to either conceed the issue (which is also unlikely) or take the position that the decision is limited only to the 8th Circuit. However, this is a difficult argument for USEPA to make considering its consistent reliance on D.C. Circuit precedent as binding in other contexts and Circuits. Assuming USEPA does take this position, however, additional litigation will certainly follow in other Circuits. We will continue to follow USEPA’s response and next steps and provide updates on this blog.
