Latest legal twist shuffles calendars, prospects

By Ellen M. Gilmer, Robin Bravender | 05/17/2016 01:10 PM EDT

With the U.S. Court of Appeals for the District of Columbia Circuit’s surprise decision to push Clean Power Plan arguments to September before the full court, dozens of lawyers are now shuffling their schedules and planning for a new legal timeline.

With the U.S. Court of Appeals for the District of Columbia Circuit’s surprise decision to push Clean Power Plan arguments to September before the full court, dozens of lawyers are now shuffling their schedules and planning for a new legal timeline.

The court’s announcement took everyone by surprise. Instead of presenting oral arguments before a three-judge panel in early June, defenders and challengers of the Obama administration’s signature climate rule will make their case before all participating judges on Sept. 27.

"We have a little extra breathing room," environmental attorney Sean Donahue said, but the court’s move only "defers" the high-stakes scramble to oral arguments.


Tom Lorenzen, an attorney at Crowell and Moring who’s representing electric cooperatives challenging the rule, joked yesterday that he has suddenly found himself with more time on his hands.

He called the court’s decision "another astonishing order" in a case that continues to surprise all parties involved. The court only tends to grant about one full bench, or en banc, rehearing per year, he noted. It goes to show that "anything can happen in this case," he said.

Jonathan Adler, a law professor at Case Western Reserve University and a former clerk on the D.C. Circuit, noted that the court has decided before to skip a three-judge panel, by first hearing the antitrust case United States v. Microsoft Corp. before an en banc court in 2001.

In that case, Adler wrote on the legal blog the Volokh Conspiracy, "the court’s decision to go en banc could be explained by the fact that only seven judges could participate in the case, which could have made it difficult for the court to rehear the case en banc after a three-judge opinion."

Adler said today in an interview that he isn’t aware of any similar decisions to first hear a case en banc at either the D.C. Circuit or other federal appeals courts.

Tweaking the timeline

With oral arguments set for en banc review, the case may see an accelerated path to the Supreme Court. Both sides had signaled plans to request en banc review if they lost before the D.C. Circuit panel. Now, that potentially time-consuming step is eliminated (EnergyWire, May 17).

"It definitely shortens the time period for this to get to the Supreme Court," Dorsey & Whitney attorney James Rubin said. "This does show that there is recognition for the need to move this forward. It’ll speed things up to some extent."

A quicker path to the Supreme Court could be a boon for U.S. EPA if it wins in the lower court, Adler said, as it could have the effect of "shortening the stay" imposed when the Supreme Court halted the rule.

Still, late September oral arguments mean that the appellate court is unlikely to issue a decision before the election, or perhaps even before the next president is inaugurated. Rubin noted that with nine judges expected to hear the case — five appointed by Democrats and four appointed by Republicans — the majority might need more deliberation time to issue an opinion.

Bracewell attorney Jeff Holmstead, representing the coal industry in the case, estimated that an early 2017 decision from the D.C. Circuit would result in a final decision from the Supreme Court in mid- to late 2018.

According to ClearView Energy Partners analyst Christi Tezak, the timeline opens a range of hypothetical outcomes for the climate rule. Assuming the losing side appeals the D.C. Circuit’s decision, the Supreme Court would decide whether to hear the case by mid-2017, setting up a 2018 decision if it does take the case.

But if EPA loses at the circuit court and a Republican administration does not appeal, the Clean Power Plan could see its demise as soon as early 2017. In that scenario, environmentalists could try to make their own case before the Supreme Court, but "it would be a very difficult hurdle" persuading the court to consider arguments if the administration itself will not defend the rule, Tezak noted.

Looking for an edge

Parties on both sides of the case see potential advantages to the delay.

In the Clean Power Plan case, "the fact that they found something in the case en banc worthy is not necessarily a good sign for EPA," Adler said, because judges on the court viewed legal issues as important enough for the full court to wade in.

"It’s a huge case," Adler said. "Extraordinary cases often produce extraordinary procedural things."

Challengers to the rule could benefit from the case going before the full roster of judges, given that the three-judge panel was widely viewed as a lucky draw for the agency. That panel consisted of two Democratic appointees and one Republican appointee.

"[T]he government has lost the advantage it had with a smart favorable panel that could have written a strong opening opinion," said Pat Parenteau, a professor at Vermont Law School.

The new setup adds Republican appointees to the mix, including several who have been vocal critics of Obama administration air and climate regulations. It "changes the makeup of the court in ways that could be significant," Lorenzen said.

Holmstead, the coal industry lawyer, noted that his side now has increased opportunity to win over one of the Democrat-appointed judges because at least five will be sitting on the bench.

Still, Adler said, "overall you have to assume that the D.C. Circuit as currently constituted will be fairly deferential to the administration."

Even if the two judges who didn’t participate in the decision to review the case en banc — Chief Judge Merrick Garland and Judge Cornelia Pillard — don’t hear the case, the court will still have five Democratic appointees and four Republican appointees.