CLEAN POWER PLAN

Scalia's death 'puts all the action' in D.C. Circuit

When it comes to the Clean Power Plan, the death of Supreme Court Justice Antonin Scalia may have dramatically elevated a lower court's importance -- at least in the short term.

When Supreme Court justices ruled to freeze the Obama administration's climate rule earlier this month, many viewed it as a sign that it would ultimately be rejected by the high court (Greenwire, Feb. 9). But with the possibility now that the court could split 4-4 on the case -- upholding a lower court's opinion -- all eyes are on what's happening in the U.S. Court of Appeals for the District of Columbia Circuit.

"In many respects, the death of Justice Scalia puts all the action now in the D.C. Circuit, even though the case is stayed by the Supreme Court order," Ann Carlson, an environmental law professor at UCLA, said today on a conference call.

It remains unclear which political party will ultimately appoint Scalia's successor to the bench, but environmental scholars and advocates have been busy gaming out what all possible scenarios could mean for the fate of the administration's signature climate change rule, which aims to slash greenhouse gas emissions from power plants.

For now, that means scrutinizing the landscape in the D.C. Circuit, which has scheduled oral arguments in the case for early June.

The panel of three judges picked to hear the case include two Democratic appointees and one Republican appointee. "EPA, I think, has got to be feeling pretty relieved at the judges who are on the D.C. Circuit panel," Carlson said.

The D.C. Circuit proceedings could be complicated by the fact that one of those judges -- Sri Srinivasan -- is seen as a contender for Scalia's vacant seat, and experts have been pondering what that might mean for the rule.

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If Srinivasan were to be nominated before the arguments, "there's a fair chance that he won't sit on the panel," said Michael Gerrard, a law professor at Columbia University and director of the Sabin Center for Climate Change Law. In that case, the court would designate a different judge to hear the case.

If his nomination were to occur after the argument, "he'll have been on the panel and would presumably join in whatever decision comes out," Gerrard said, meaning he'd be expected to recuse himself from the case if he were eventually confirmed to the Supreme Court.

There is precedent for that in a previous climate case, American Electric Power Co. v. Connecticut, in which Justice Sonia Sotomayor was on the 2nd U.S. Circuit Court of Appeals panel that heard the case. She didn't sign onto the opinion in that case and recused herself when the case went to the Supreme Court.

Carlson added that Srinivasan's role in the D.C. Circuit panel could affect whether he gets nominated in the first place. The administration "may not want to sacrifice him from the D.C. Circuit panel if they don't think he's going to get confirmed anyway," she said.

Election could be ultimate decider

Proponents of the U.S. EPA rule have stressed they don't think the Supreme Court's intervention to stay the rule is an indication of how the justices will ultimately rule on the merits, given that the decision came quickly and the justices didn't have time to fully immerse themselves in the complicated legal arguments.

Still, "I don't think that the stay vote was a good sign for EPA," Carlson added. She noted that Justice Anthony Kennedy, often a swing vote on environmental issues, joined the court's conservative wing in granting the stay.

Gerrard said, "If the same lineup would vote in the same directions on the merits, if and when the case reaches the Supreme Court, it would be a 4-4 tie," with the effect to "leave the lower court decision standing."

The high court could also decide to rehear the case once a ninth justice has been seated, which it has done in the past for controversial cases.

Legal experts are looking ahead to determine what could occur depending on which party clinches the White House.

"By the time the Clean Power Plan gets up to the Supreme Court, assuming that the Supreme Court decides to review any decision by the D.C. Circuit, we will probably have a ninth justice of the Supreme Court," Carlson said, noting that a Democratic appointee would be more likely to swing the court in favor of upholding the Clean Power Plan.

"You could say that the election is really what's going to decide the fate of the Clean Power Plan," she said. "That's assuming that President Obama does not succeed in getting his Supreme Court justice confirmed."

Twitter: @rbravender Email: rbravender@eenews.net

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