New lawsuit’s goal: Secure right-leaning judicial panel

By Jeremy P. Jacobs | 08/14/2015 12:51 PM EDT

Yesterday’s bid by 15 states asking a federal court to block U.S. EPA’s landmark Clean Power Plan contained little new information about their objections to the rule.

But it did illuminate a key aspect of their legal strategy: retaining the same three Republican-appointed judges who considered an earlier, premature challenge to the regulations before they were finalized.

Led by West Virginia, the states yesterday asked the U.S. Court of Appeals for the District of Columbia Circuit to take the unusual step of granting an emergency stay of the landmark greenhouse gas standards for power plants, which would put the rules on hold pending the resolution of litigation (EnergyWire, Aug. 14).


The D.C. Circuit typically doesn’t entertain challenges to Clean Air Act regulations before they are published in the Federal Register. The Clean Power Plan has yet to be published, leading supporters of the regulations to criticize the latest attempt by critics to bypass the usual judicial review process.

But from a legal strategy perspective, the most important document filed at the D.C. Circuit yesterday may not have been the stay request but a motion to consolidate the new filing with a previous D.C. Circuit case on the greenhouse gas rules when they were in their proposal stage.

If the D.C. Circuit agrees to consolidate the two cases — and there is significant disagreement about whether it would — that may preserve the three-judge panel that heard the earlier case.

The states were explicit in their desire for those three judges.

"In short, considerations of judicial efficiency militate strongly against requiring a new panel to become familiar with these arguments. … The Murray and West Virginia panel is by far the best positioned to rule on the Emergency Petition within the requested timeframe," they wrote, referring to the earlier cases.

The judges who considered the previous challenge from the Ohio-based Murray Energy Corp. and more than a dozen states were Brett Kavanaugh, Thomas Griffith and Karen Henderson. All three were appointed by Republican presidents, and Kavanaugh, in particular, has a track record of ruling against EPA in high-profile cases.

Those judges rejected the early challenge on procedural grounds, holding that the states and industry groups could not challenge a rule before it is finalized (Greenwire, June 9).

But they didn’t delve into the merits of the challengers’ claims — including whether EPA has authority to issue the regulations under Section 111(d) of the Clean Air Act because the agency has already regulated power plants under another part of the law; whether EPA’s mandates reach too far beyond the "fence line" of power plants; and whether they unconstitutionally infringe on states’ rights.

And some court watchers believe the judges may be receptive to those arguments.

"It’s a pretty favorable panel for them," said Justin Pidot, a former Justice Department environmental attorney who is now a professor at the Sturm College of Law at the University of Denver. "It’s not surprising they are trying to keep it. It’s certainly part of their strategy."

Environmental groups have strongly opposed efforts to retain that three-judge panel for any future litigation on the Clean Power Plan, which would cut carbon dioxide emissions by 32 percent from 2005 levels by 2030.

However, the D.C. Circuit’s procedural rules are very unclear about whether and when the same three-judge panel is assigned to new cases. In short, the court has a great deal of discretion on the matter.

Willy Jay, a former Justice Department attorney now at the firm Goodwin Procter, said there have been instances where a case has been before the D.C. Circuit, then returns later and merits the same panel of judges. But that’s not necessarily the norm, he said.

A key issue is how much time and effort the previous three-judge panel — Kavanaugh, Henderson and Griffith — spent learning the issues presented in the earlier case. If it was extensive, even though they didn’t discuss them in their ruling, that could warrant their assignment to the new case.

"Only the court knows how much time it spent familiarizing itself with the merits as opposed to the jurisdictional issues," Jay said.

It’s important to note, however, that stay and consolidation motions, like those filed by the states yesterday, usually go before a special panel of three judges who review motions pending in all cases before the D.C. Circuit. That panel is typically not the same three judges who then consider the full proceedings on the case.

While the previous panel didn’t engage with the main legal arguments presented in their ruling, there is some indication that one of those judges would be receptive to issuing a stay while the litigation plays out.

In her concurring opinion, Henderson wrote that she believed a law called the All Writs Act grants the court broad authority to step in and block regulations in unusual circumstances. West Virginia and the challenging states’ emergency stay petition filed yesterday expressly points to the All Writs Act.

Vermont Law School professor Pat Parenteau said Henderson’s writing "does indicate that she views the All Writs Act as a broad grant of equitable authority unconstrained by the strict procedural requirements of the Clean Air Act."

"Assuming this petition goes back to the original Murray panel," he added, "her vote could be important."

It is unclear when the court will rule on the stay request or when it will assign a panel to it.

But for now, Jay said, "the wrinkle in this case is the consolidation request."

Click here for the motion.