The Clean Power Plan will have its day in court, just not when everyone thought it would. The U.S. Court of Appeals for the D.C. Circuit on Monday ordered oral arguments in the lawsuit challenging the rule be heard by the full court of 11 judges, assuming none choose not to participate, on Sept. 27. This new court date replaces the June 2 oral arguments previously scheduled before a three-judge panel. The decision appears to have been made independently by the court as there is no evidence that any parties requested an en banc review.
The order could expedite the conclusion of the suit at the circuit court level as an “en banc” review of this sort was expected to be requested by whichever party was on the wrong side of the decision of the three-judge panel.
The suit against the Clean Power Plan, which requires states to develop action plans to meet federally set carbon emissions reductions targets, was filed the day the final rule was published in the Federal Register, the legal starting gun for such a challenge. The lawsuit pits a group of 27 states and numerous utilities, fossil energy companies, and interest and trade groups against the Environmental Protection Agency.
Initially, the petitioners called for the appeals court to stay the rule, putting implementation on hold until the legal challenge had been resolved. The appeals court denied this request and the petitioners appealed to the Supreme Court. In an extremely unusual move, the high court in February granted the stay in a 5-4 decision, hinting to the case parties how the eventual Supreme Court battle might look.
Just days later, Justice Antonin Scalia unexpectedly died. In the aftermath of the justice’s passing a large group of Republicans in Congress, unwilling to bear having another justice nominated by President Barack Obama serving on the high court, insisted they would not even consider an Obama nomination. This move could leave the seat open until after the next administration takes office in January 2017. The Republicans, led by Senate Majority Leader Mitch McConnell (R-Ky.), have stayed true to their word, refusing to hold any hearings for Obama’s nominee, Merrick Garland, chief judge of the D.C. Circuit appeals court.
The standoff has left the Supreme Court with eight justices, which has already resulted in at least one 4-4 decision. In the case of a tie, which is a possibility in the Clean Power Plan case, the case would revert to the decision of the lower court, adding even greater importance to the Court of Appeals decision.
News of the new court date was well received by EPA’s supporters, who suggested that even though the date is later, hearing arguments immediately by the full D.C. Circuit Court will speed up the process. The case was expected to be decided by the Supreme Court on late 2017 or early 2018. “Today’s order will enable the full D.C. Circuit to resolve the legal challenges to the Clean Power Plan immediately and without delay – an especially important development given the urgent threat of climate change to the health and security of communities and families across our nation,” Tomás Carbonell, director of regulatory policy and senior attorney at the Environmental Defense Fund, a party to the case, said in a release.
David Doniger, director of the Climate and Clean Air program at the Natural Resources Defense Council, echoed this sentiment. “The court’s order today may well speed up final resolution of the case. We look forward to our day in court – and remain confident that the Clean Power Plan will prevail over efforts by polluters and their allies to block climate action,” he said in a separate release.
