Oral arguments to assess the merits of the Clean Power Plan will now take place before a nine-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit on September 27, bypassing review of challenges to the Environmental Protection Agency’s (EPA’s) controversial rule by a three-judge panel that was originally scheduled to begin within two weeks, on June 2.
The D.C. Circuit did not explain its decision to reschedule arguments and hold them before the en banc court in a May 16 order, but the measure is generally expected to speed up the litigation process because it precludes parties from appealing a ruling to the court’s full panel.
“Normally, the case would start with the three-judge panel, and because it’s a controversial issue, the loser would likely ask for en banc review by the full Court of Appeals before appealing to the Supreme Court itself. (Especially if the Supreme Court lacks a ninth member, making any case it hears a wild card play for the parties),” Erin Ryan, a professor at Florida State University College of Law, told POWER on May 17.
Whatever its outcome, the much-watched case will certainly be appealed to the U.S. Supreme Court. The Supreme Court, which issued an unprecedented stay of the rule on February 9, has blocked the EPA from acting on it until the D.C. Circuit decides on the rule, and requests for appeal or writ are decided.
The D.C.’s order to hear the case en banc by its own initiative—no parties have asked for the measure—is rare.
According to John King, a partner with Louisiana-based law firm Breazeale, Sachse & Wilson, the order may do little to resolve uncertainty surrounding the rule’s legal hurdles. “I do not know what this portends for the outcome but it likely shortens the period of time before it gets to the Supreme Court,” King told POWER on May 17.
But speeding up the overall process of judicial review may benefit all stakeholders, Ryan said, noting that it could reduce the period of uncertainty as to when and whether the rule’s requirements go into effect. “Whether you’re a state trying to plan your regulatory obligations, or an investor or a producer trying planning for the future, it seems like everyone would benefit from a clearer picture of what the regulatory context will look like,” she said.
Questions also abound about how the electoral cycle will affect the rule. Even before the court’s order, a decision from D.C. Circuit had been expected later this year. If the Supreme Court decided to hear the case, review of the rule would have likely been completed in 2017 or 2018. Under the new schedule, the D.C. Circuit’s decision won’t likely be issued until before the end of the year—likely after the November election. And it may mean that the Supreme Court won’t hear the appeal before the fall of 2017.
Concerns are also widespread about how the Supreme Court will change after the recent death of Justice Antonin Scalia in the aftermath of the election.
Ryan pointed out that the new schedule may have political implications of its own: “If the decision came down before the election, whichever side is unhappy about the result may be mobilized to vote in greater numbers, knowing that the new President will appoint the ninth member of the Supreme Court that is will ultimately decide the issue. So it’s possible that this move will chill potential political use of the case—but given how controversial it is, probably not by very much.”
Meanwhile, the full court at the D.C. Circuit consists of 11 judges, but the May 16 order indicates that Chief Judge Merrick Garland, President Obama’s Supreme Court nominee, has recused himself from all cases, and that Judge Nina Pillard will not hear the case. Of the nine remaining judges, five were appointed by Democratic presidents and four by Republican presidents.
The case is State of West Virginia, et al. v. EPA, et al., No. 15-1362, and consolidated cases.
—Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)
UPDATED: May 17, adds Erin Ryan’s comments