Tuesday, May 17, 2016

Clean Power Plan:  Both Sides Claim Upper Hand After 'Complete Surprise' from Court

Courthouse for United States Court of Appeals - District of Columbia Circuit (Credit: cadc.uscourts.gov) Click to Enlarge.
Opposing sides in the monster litigation over the Obama administration's signature climate rule are busy gaming out any strategic advantage of a federal court's unexpected decision yesterday to delay oral arguments and arrange broader review.

The U.S. Court of Appeals for the District of Columbia Circuit yesterday announced that the battle over U.S. EPA's Clean Power Plan will skip customary review by a three-judge panel in June and instead go before the full court in September. Consideration by all active judges -- known as en banc review -- is extremely rare at the D.C. Circuit, and the announcement took many litigants by surprise.

"I think this came as a complete surprise to everybody," said coal industry attorney Jeff Holmstead, who said his phone was flooded with the news as he got off an airplane yesterday.  "I can't think of another case where the full court has stepped in on its own before it even went to a panel.  That's pretty extraordinary."

The court's move is another twist in a case that has defied the traditional legal track.  With emergency requests streaming in from a swarm of states, utilities and other stakeholders, the Supreme Court made an unprecedented decision in February to step in and freeze the Clean Power Plan during D.C. Circuit review.
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Opponents of the plan to cut carbon emissions from the power sector say the court's decision is evidence of judicial skepticism toward the rule.  Segal, of the Electric Reliability Coordinating Council -- an industry coalition that opposes the rule -- noted that the bar for en banc review is high, requiring that a case be "a question of exceptional importance." Segal says the court's move shows that the rule is well beyond EPA's traditional powers.
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EPA advantage?
But supporters of the rule see advantages in the new timeline.  The development delays oral arguments until Sept. 27 but may accelerate the case's path to the Supreme Court.

Attorney Sean Donahue, who is representing environmental groups supporting the Clean Power Plan, said the move reflected a pragmatic approach from the court, which likely would have been pressed to hear the case en banc after panel review anyway.

"Obviously we're surprised at this point, but there's a lot of logic to it given where and what the case is, and given the interest in resolving the whole case," he told EnergyWire. "This sort of skips a step, assuming that whoever did not prevail before the panel would at least try to get en banc review."

Natural Resources Defense Council attorney David Doniger agreed, noting that the court's order "may well speed up final resolution of the case."  Environmental Defense Fund attorney Tom├ís Carbonell said in a statement that faster resolution would help address "the urgent threat of climate change to the health and security of communities and families across our nation."
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Party lines
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John Hanger, an energy policy expert who supported Clean Power Plan compliance while working in the Gov. Tom Wolf (D) administration in Pennsylvania, said he is confident the case will break down on party lines.

"This issue unfortunately is politicized in two ways:  It's politicized on global warming, which has been politicized even in the judiciary," he said.  "And EPA cases have become politicized within the judiciary."

Given that background, he said, the en banc review likely works in EPA's favor.

Read more at Clean Power Plan:  Both Sides Claim Upper Hand After 'Complete Surprise' from Court

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