The fate of the Obama administration’s signature climate change rule is in the hands of the courts
The Clean Power Plan is on hold after the Supreme Court’s decision to freeze the rule. Meanwhile, dozens of lawyers faced off in the U.S. Court of Appeals for the District of Columbia Circuit in oral arguments in September. The court made the unexpected decision in May to bypass review by a panel of three judges in favor of consideration en banc — by the full court.
The D.C. Circuit's move toward en banc review was the latest in a series of twists in the litigation. For many, the Supreme Court's surprise move to block implementation of the Clean Power Plan signaled doom. The rule is likely to ultimately be decided by the high court. But the death of Justice Antonin Scalia in February dramatically changed that legal landscape.
The conservative justice's death came just days after he cast a pivotal vote to stay the regulation while it's under review at the D.C. Circuit. That 5-4 decision gave critics reason to believe the justices would torpedo the rule along those same lines.
The Clean Power Plan's fate may now hinge on Scalia's vacant seat.
If a new justice isn't appointed by the time the case makes it to the high court, the justices could split 4-4, which would uphold the D.C. Circuit's decision. If the case is heard by a full court, a ruling on the regulation could depend on which party nominates the next justice.