The Clean Power Plan will get its day in court, but in September, not June — and by the full en banc D.C. Circuit Court of Appeals, not the court’s normal three-judge panel that was scheduled to hear it in just over two weeks.
West Virginia v. Environmental Protection Agency is one of the most important environmental cases in almost a decade. The case will decide whether the EPA violated the law when it finalized its carbon rule to regulate greenhouse gas emissions from the power sector under the Clean Air Act.
So Monday evening the D.C. Circuit Court of Appeals announced it is bypassing its planned June 2 oral arguments over the Obama administration’s signature climate policy.
“It is ORDERED, on the court’s own motion, that these cases, currently scheduled for oral argument on June 2, 2016, be rescheduled for oral argument before the en banc court on Tuesday, September 27, 2016 at 9:30 a.m.,” the D.C. Circuit’s announcement read. “It is FURTHER ORDERED that the parties and amici curiae provide 25 additional paper copies of all final briefs and appendices to the court by June 1, 2016. A separate order will issue regarding allocation of oral argument time.”
What does this mean?
The court thinks it’s important
First, the D.C. Circuit thinks this is an important case — important enough to merit the attention of the full panel — and they understand that the Supreme Court can’t decide a close case following the passing of Justice Antonin Scalia. A win for the industry or for the administration is significant, with the D.C. Circuit functioning as something of a court of last resort with the Supreme Court likely to deadlock 4–4.
The decision won’t be an election issue
Second, now it is clear that the court’s decision will come after the November election, instead of before it. This impacts the case should it see an almost-certain appeal to the Supreme Court. Scalia’s replacement is likely to hinge on the result of the 2016 presidential election, which throws more uncertainty into the mix. It’s already become a political issue in Congress, with hundreds of conservative members (all Republicans except Sen. Joe Manchin (D-WV)) filing a brief opposing the rule, and hundreds of current and former legislators filing a brief in support.
“The Clean Air Act gives the EPA authority to regulate pollution. That is what the agency is doing with the Clean Power Plan rule — Reducing carbon pollution from existing power plants,” Sen. Ed Markey (D-MA) said last month.
The odds don’t change much
Third, the EPA’s chances remain better than average. The three-judge panel originally slated to hear the case was 2–1 in favor of judges appointed by Democratic presidents. This calculus expands, but does not change much with the shift to en banc. The current full court consists of 11 judges, and the decision would be heard by nine after setting aside Chief Judge Merrick Garland and Judge Nina Pillard, who “did not participate” according to the notice. (Garland is likely sitting out because of his status as a Supreme Court nominee; it is not clear why Pillard isn’t participating.) Still, Republican presidents appointed four, and Democratic presidents appointed five of the remaining nine. Judges are independent intellects, but all things being equal it appears likely that group of nine would decide with the EPA in something close to a 5–4 decision.
It may speed things up
The fourth and biggest question is timing. The administration wishes to see its signature climate policy secure before it leaves office in January, which seems less likely now. Some states wish to have a green light to proceed with their compliance plans and to begin cutting the carbon out of their power sectors. About two dozen other mostly GOP-led states, many of whom have already joined the case against the EPA, wish to delay the decision as much as possible. This, despite the fact that 60 percent of the people living in those states support the rule.
Delay has become the name of the game here — every day the U.S. power sector’s carbon emissions go unregulated, that much more heat is trapped in the atmosphere.
So does this announcement speed things up or fashion further delay? It could actually expedite things by skipping the step where one party appeals from a three-judge panel to the full circuit court, and then to the Supreme Court. It could also slow things down because prior to Monday’s delay, either party could have tried to skip the en banc step and appealed directly from the three-judge panel’s decision to the Supreme Court, with the June arguments as the starting point rather than September.
In March, a circuit court announced that a pivotal voting rights case that was decided by a three-judge panel the previous August will be reheard en banc — delaying a final decision further.
“The court’s order today may well speed up final resolution of the case,” said David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council, in a statement. “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.’’
The thinking goes that this decision removes the potential request to rehear the case en banc that could arise after a three-judge panel ruled.
That rehearing, if it had been requested, and if the court had granted it, would not have taken place until spring of 2017, a lawyer familiar with the case told ThinkProgress. The court skipping straight to en banc could indeed lead to the Supreme Court hearing the case before it otherwise would have.
The D.C. Circuit’s decision is expected in either winter or early spring, the lawyer familiar with the case said. This means the Supreme Court will likely hear the almost-certain appeal in the fall of 2017, with a slight chance it could sneak into spring 2017 arguments.
Even Without EPA’s Clean Power Plan, ‘The Future Is Bright For Wind And Solar’Climate CREDIT: Shutterstock The future for U.S. renewables is very bright with or without the EPA’s carbon pollution…thinkprogress.orgThere are lingering questions about the court’s decision. It is unclear why the en banc D.C. Circuit needs four months before oral arguments — or what happened to prompt the judges to vote to move to en banc now, since the case has been before them for a while. Furthermore, it’s not clear why more liberal judges would want to take the case to the full court before the panel — which was also favorable to the administration — decided the case. Following a panel decision, a majority of judges would have to agree to rehear the case en banc.
Whether this case will now be heard earlier or later than it would prior to Monday’s announcement, it will still help define America’s ability to rein in carbon pollution, which dictates how successful the world will be in fighting climate change.