D.C. Circuit ruling on CO2 plan could come this fall, attorney predicts

A leading power industry lawyer who was a senior Environmental Protection Agency official during the George W. Bush administration expects the U.S. Court of Appeals for the D.C. Circuit to rule on the EPA Clean Power Plan (CPP) this fall.

Jeff Holmstead, a Partner at Bracewell & Giuliani LLP, who is among the lawyers working on the case, suspects a ruling could come from the D.C. Circuit in September or October of this year.

Holmstead offered his educated guess on the timetable during a March 18 webcast on the Clean Power Plan sponsored by the PennWell Power Engineering Magazine.

The hour-long discussion featured Holmstead and Environmental Council of the States Executive Director and General Counsel Alexandra Dapolito Dunn.

“The general wisdom these days” is that the CPP will probably survive legal challenge before the D.C. Circuit, Holmstead said. The industry attorney said he wouldn’t be surprised if it’s a two-to-one decision with one of the appeals judges issuing a dissent.

Whichever side loses before the three-judge panel at the D.C. Circuit will then ask the appeals court for some type of rehearing. That process would likely take another 60-to-90 days.

Once the litigation is finished at the appeals court, the losing party is expected to then ask the U.S. Supreme Court to hear the case.

A “cert petition” could likely be filed with the Supreme Court in the first quarter of 2017. The high court would then have to decide whether to hear the case.

Should the U.S. Supreme Court decline the hear the case after the D.C. Circuit issues its ruling – a scenario that most legal observers consider unlikely – the earliest possible date for the Clean Power Plan litigation to conclude would be around April 2017, Holmstead said.

If the Supreme Court elects to ultimately hear the case, Holmstead expects it would be heard by the high court in either late 2017 or early 2018. Final disposition might then come in spring 2018, Holmstead said.

It’s worth noting that the courts could eventually decide this case on technical or procedural grounds, Holmstead said.

It’s also worth noting that the final rule from EPA is “very different” from the draft that EPA first proposed, Holmstead said. The courts might rule that EPA must seek comment on this final version because it was so different from the first draft, Holmstead said.

As an advocate in the case, Holmstead believes it is an “extraordinary” move under Clean Air Act for EPA to try and force fuel switching. “That is not what a performance standard has ever meant before,” Holmstead said.

States have long had the ability to decide what type of power plants they in their states, Holmstead added. “This rule only works if there is a trading system,” Holmstead said.

The U.S. Supreme Court stayed implementation of the Clean Power Plan in February. The four-member liberal wing of the nine-member court did note vote in favor of granting the stay.

Justice Antonin Scalia died a few days after the stay was issued. Holmstead cautioned against people jumping to the conclusion that the way the justices voted on the proposed stay accurately predicts how they might rule on the legality of the Clean Power Plan.

Despite stay, states are still have ‘conversations’ on CO2 plans, Dunn says

The EPA Clean Power Plan would require states to draft implementation plans to cut CO2 emissions 32% by 2030.

The measure has triggered a lot of “passion … anger and heartburn” among supporters and foes, Dunn said.

It’s quickly become one of the most litigated rules in EPA history, Dunn said.  She noted that most of the states that voted for President Obama in the last election are in favor of the CO2 proposal; while most of the states who favored Republican Mitt Romney are opposing the regulation in court.

There were a slew of questions on implementation and many of them boiled down to who was really on the hook for CO2 emission cuts at the end of the day.

Issuance of the stay of the CPP has prompted man states to move “on a dual track,” Dunn said.

 “The conversations are still happening,” Dunn said. “But many states have made it quite clear they are not putting together anything resembling an implementation plan.”

The CPP is not the only EPA rule on air that Obama administration has in the hopper, Dunn said. “We have plenty of work to do” on other EPA air regulations, she added.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.