Full D.C. Circuit to Hear Clean Power Plan Argument

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By Andrew Childers

May 16 — The full U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument over the Environmental Protection Agency's Clean Power Plan Sept. 27, bypassing a hearing before a three-judge panel that had been slated to begin June 2 (West Virginia v. EPA (D.C. Cir. 2016)).

The court on its own motion delayed argument in the case in an order issued May 16. Judge Merrick Garland, who is awaiting confirmation to the U.S. Supreme Court, and Judge Cornelia Pillard, who previously sat out argument over the EPA's mercury standards for power plants, will not participate in the case, the order said.

“The court has anticipated, obviously, the significance of whatever the panel would say and the related likelihood that it would end up en banc. They’ve basically truncated that process,” Richard Lazarus, a Harvard Law School professor representing former EPA administrators William D. Ruckelshaus and William K. Reilly in defense of the Clean Power Plan, told Bloomberg BNA.

The court's order is only the latest unexpected development in the litigation over the EPA's Clean Power Plan (RIN:2060-AR33), which sets carbon dioxide emissions limits on the existing fleet of power plants. Though the case has not yet been argued before the appellate court, the Supreme Court in February took the unprecedented step of staying the rule's implementation while it is litigated (West Virginia v. EPA, S.C., No. 15A77, 2/9/16).

“I can’t think of another case where before the case was argued before the panel, the full panel stepped in and said, ‘We want to hear this en banc,' especially when nobody asked for it,” Jeffrey Holmstead, a partner at Bracewell LLP representing the American Coalition of Clean Coal Electricity, told Bloomberg BNA.

Court Vacancy Informs Litigation

Justice Antonin Scalia died just after that stay order was issued and it is possible the court could still have only eight justices by the time the Clean Power Plan is reviewed by the D.C. Circuit and appealed to the highest court, Thomas Lorenzen, a partner at Crowell & Moring LLP representing the National Rural Electric Cooperative Association in the litigation, told Bloomberg BNA.

That stay order could factor into how the D.C. Circuit considers the case, he said.

“A decision at the D.C. Circuit that’s been heard en banc may have a bit more legitimacy by the public than one that’s only been heard by a three-judge panel,” Lorenzen said.

Supreme Court Review Delayed

By skipping the three-judge panel argument and going straight to the full court, environmental advocates said the D.C. Circuit could hasten its review of the Clean Power Plan.

“We are anxious to get this resolved,” Vera Pardee, an attorney at Center for Biological Diversity, which is supporting the EPA's plan, told Bloomberg BNA.

However, pushing back oral argument from June to September is likely to delay any potential hearing before the U.S. Supreme Court, Lazarus said.

Attorneys said the D.C. Circuit is unlikely to issue its ruling before the end of the year, which means it will be impossible to get the case before the Supreme Court during its spring 2017 term. That would delay Supreme Court review until the fall of 2017 meaning any eventual decision may not be issued until 2018.

Judges Consider Importance

One of the criteria for granting such an early en banc hearing is for matters of exceptional important, which may be how the D.C. Circuit views the Clean Power Plan, Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, told Bloomberg BNA. Though the EPA had attempted to frame the Clean Power Plan as a routine exercise of its Clean Air Act authority, opponents of the rule have called it a power grab by the agency that could reshape the entire country's energy sector.

“What we have here is an administrative rule on pollution from power plants, which is something the agency has done for decades, said Burger, who represents cities and mayors supporting the EPA in the litigation. “It would seem the petitioners’ frame that what we have here is not some just air pollution rule, but the risk or threat of some greater power grab has at least raised ample enough alarm that the courts at the highest level are taking extraordinary and, in some cases, unprecedented action.”

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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