Full D.C. Circuit to hear Clean Power Plan in September

The U.S. Court of Appeals for the District of Columbia Circuit issued an order May 16 providing that legal challenges to the Environmental Protection Agency (EPA) Clean Power Plan will be heard en banc by the active judges on the court, and rescheduling oral argument in the case until Sept. 27.

Cases that go before federal appeals courts are typically heard first by a three-judge panel appointed by the court. Until now, a three-judge panel for the D.C. Circuit had been scheduled to hear the case June 2.

Evidently that step will now be skipped and the full D.C. Circuit will hear the case. Traditionally, the losing part in a decision from a three-judge panel can ask for full appeals court review before then asking to be heard by the U.S. Supreme Court.

“We welcome the D.C. Circuit’s order providing for immediate en banc review of the Clean Power Plan, and look forward to presenting the strong legal and factual basis for the Clean Power Plan to a full complement of active judges on the court,” said Tomás Carbonell, Director of Regulatory Policy and Lead Attorney at the Environmental Defense Fund (EDF), which is a party to the case.

“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,” Carbonell said in a news release from EDF.

The case had already been stayed by the U.S. Supreme Court pending resolution of legal challenges to the Clean Power Plan. The Obama administration program would have states draft plans to curb power sector carbon dioxide (CO2) emissions 32% by 2030.

Chief Judge Merrick Garland and Judge Cornelia Pillard did not participate in the issuance of the May 16 D.C. Circuit order. Garland has been nominated by President Obama to fill the vacancy on the U.S. Supreme Court created by the death of Justice Antonin Scalia.

Republican leaders in the U.S. Senate have indicated that they will not act on the nomination prior to the presidential election in November.

The Washington Post reported that the D.C. Circuit also skipped the three-judge panel stage in a 2001 case where the United States government was accusing Microsoft of anti-trust violations.

The CO2 case is State of West Virginia et al versus EPA et al: (No. 15-1363 and consolidated cases).

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.