In a surprise twist to the legal battle over the Clean Power Plan, the U.S. Court of Appeals for the District of Columbia Circuit expanded the panel of judges that will hear arguments next week.
Judge Cornelia Pillard, who has sat out previous decisions on the litigation, will hear arguments Tuesday, according to an order issued this morning.
All the court’s active judges — except President Obama’s nominee for the Supreme Court, Chief Judge Merrick Garland — will participate in the en banc arguments, the D.C. Circuit order says.
Pillard’s addition to the panel is yet another wrinkle in the fight over Obama’s signature climate rule. In an extremely rare move, the D.C. Circuit had pushed back arguments on the climate rule that were originally scheduled for a three-judge panel in June to Tuesday in front of the full court.
With Pillard, an Obama appointee, the panel hearing the case comprises six Democratic appointees and four Republican.
The change could make it more difficult for challengers of the rule to succeed, said James Rubin, a partner at law firm Dorsey & Whitney.
"You need a majority," Rubin said. "Obviously, when it was nine judges, to knock the rule down, the challengers only had to convince five judges of something wrong with the rule. Now they have to convince more, including a judge who was recently appointed for Obama. I think it would make it a bit harder."
Last week, Oklahoma Attorney General Scott Pruitt (R) said the makeup of the nine-judge panel slated to hear the case had already presented an "uphill battle" for challengers of the rule (Greenwire, Sept. 14).
On the other hand, the federal government and U.S. EPA’s allies will also have to convince one more judge that the rule is legal.
The 10th judge also raises the possibility of 5-5 decision over the Clean Power Plan’s legality.
According to D.C. Circuit rules, a split decision in an en banc panel upholds the decision of the three-judge panel that originally heard the case. But there is no prior three-judge decision to fall back on with the Clean Power Plan.
"This is the first time a panel is hearing anything, so can’t go down to a three-judge count," Rubin said. "That adds an interesting complication to the case."
Many close watchers of the case refused this morning to speculate on what the addition of Pillard means.
The court has given no indication of why Pillard didn’t participate in prior decisions or why she’s now been added to the panel.
Russell Wheeler, an expert in judicial ethics at the Brookings Institution, said it’s possible Pillard got rid of an investment that had required recusal. Under the law, judges are required to recuse themselves from cases if they have stock ownership in a party involved in the litigation.
That issue came up last year when the Supreme Court heard arguments in a case over a rule aimed at encouraging consumers to cut electricity use.
Justice Stephen Breyer participated in the arguments while his wife had a financial stake in one of the companies involved. His wife, Joanna Hare, sold all her shares, allowing the justice to remain a part of the case (Greenwire, Oct. 16, 2015).
Judges also sometimes recuse themselves from cases based on other circumstances that might affect their impartiality, such as if a family member works for a law firm that works on the issues presented in the case, Wheeler said.
