Clean Power Plan

Dorsey & Whitney's Rubin says D.C. Circuit decision likely to affect substance of arguments

Following the U.S. Court of Appeals for the District of Columbia Circuit's surprise decision this week to push Clean Power Plan arguments to September before the full court, how are parties involved in the case shifting strategies in light of the broader review? During today's OnPoint, James Rubin, a partner at Dorsey & Whitney, discusses the impact of the court's decision on the power plan's legal timeline and prospects for the case overall.


Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi. With me today is James Rubin, a partner at Dorsey & Whitney. Jim previously served for 15 years in the Environment and Natural Resources Division of the Department of Justice. Jim, it's always nice to have you on the show.

James Rubin: Thank you for having me back.

Monica Trauzzi: So, Jim, this week the D.C. Circuit threw everyone for a loop by pushing Clean Power Plan arguments to September and also before the full court. On the scale of surprising news from the court, where does this lie?

James Rubin: Pretty surprising. I mean, nobody asked for this. It was sua sponte. I don't think anybody expected -- I'm actually surprised that nobody asked for it given the way this case has gone. But I think it probably took everybody by surprise.

Monica Trauzzi: Other than changing everyone's summer vacation schedules, what does the decision mean ultimately for the legal timeline on the Clean Power Plan?

James Rubin: Well, it's interesting. I mean, it probably moves it forward by a couple months, if you assume that someone was going to move for rehearing on ... anyway. I mean, essentially you don't have to do that to get up to the Supreme Court, but the conventional wisdom is whoever lost this case would probably seek a rehearing to the full court and it'd go to the Supreme Court. And that process of asking for rehearing is a several-month process. It's 45 days, maybe if ... involved to seek it. You have to brief the issue, the court has to decide to hear the case by majority, and then hears the case. So we're talking about a number of months. This has been cut now -- moved up because instead of going to a panel decision and then a full-backed decision, you're going right to the full-backed decision. And so I think whatever you say about what happened here, it's likely that it probably moved the case up to the point where it could go to the Supreme Court by several months.

Monica Trauzzi: And why would the court move to make this decision?

James Rubin: Well, I think out of pragmatism. I mean, I hear a lot of folks kind of figuring out what this means with this court, and I could talk to you about that. But more generally I think the court probably figured that it was going to get this case anyway. It was a very important case. You have nearly every state in the union involved in this case. You have a sitting -- the State Department, you know, head of the State Department weighing in in an affidavit. You've got all these former Cabinet officials. You've got Congress people involved. And this is a very important case, and the court probably said, "We're going to have to hear this anyway; we might as well have all these arguments in front of all the judges and give the judges some time to actually cogitate, read the materials." I mean, you can think about all the judges now spending their entire summer vacations reading the thousands and thousands of pages of briefing, but you need time for that, so I think they did that.

And I think they also did it to create as best a record for review as they can. It'll be the full court, minus two judges, nine judges out of 11, many different perspectives. They're giving the Supreme Court the full view. And at the same time it's possible they thought if there -- you know, it's possible that they were considering this eight court -- eight judge issue. If this opinion stays the way it is because the Supreme Court decides to hear it but can't decide, at least you have the most complete case you could have out of the D.C. Circuit.

Monica Trauzzi: And following the decision all sides sort of were declaring that this was a win for them, as is to be expected in this town. Who do you think actually comes out ahead, though, now that this has been expedited?

James Rubin: Maybe the Supreme Court, because as I said before, they'll probably get a better ruling, a more complete ruling. I don't think you can really make a determination of what this means. I mean, obviously the court is saying this case is of -- you know, very important, because it's one of the standards for getting ... review. And because it's rare to do what they've done here, obviously they see it as a very important case. Does that mean that they've prejudged this issue one over the other? I've heard folks arguing that that might mean bad things for EPA. I wouldn't necessarily think that's the best response, first because this case is so hard to predict. How could you predict anything at this point? It's completely unexpected -- everything down the line has been unexpected. But more importantly it's just a procedural order. It's hard enough to read a judge's decisions from an oral argument, but a procedural order via the whole court, especially when no one's really read the briefing, it's hard to really say that anybody's taking this issue down seriously, you know, in a really regimented way. So I don't think you can read much into this.

I've heard it say that, "Well, the EPA said this case is really not a routine case, and therefore this is a cut on them." I don't think that's quite right either. I mean, the EPA thinks this is an important case, too. This is a very important rule for them. What they've argued in their briefs are that it's a standard application of Chevron deference. That doesn't mean that this is not an important matter. They certainly have asked a lot of other parties to get involved in this case to show its importance.

So I don't think, end of the day, granting it goes one way or the other. In terms of the makeup of the court -- I've also heard people going back and forth on this one. The EPA theoretically had a 2-to-1 advantage. I wouldn't necessarily call it an advantage. I would call it not a disadvantage, because the panel that heard the Murray case would've been a disadvantage. They already basically said two of the judges have pined about the problems with the Clean Power Plan. Here EPA had a chance with two judges who were at least democratically appointed, one by Obama. It gave them perception of an advantage, but they'd still have to get both judges to ... one -- two judges to root for them. Now there's five judges they have to get to root -- the majority of nine. Three of them are Obama appointees, five of them are Democrats, but they still have to convince all those five judges to root their side. So it's an advantage maybe, but I think EPA still has to make its case, so.

Monica Trauzzi: Right. And in terms of the arguments that were prepared and are now going to be prepared leading into September, does anything change? I mean, are the lawyers sitting back and thinking, OK, I need to tweak what I was going to say before the panel now that it's before the full panel?

James Rubin: Yes.

Monica Trauzzi: Yeah?

James Rubin: Well, first of all because they have all these extra months to sit there and worry about what they're going to say, so I can imagine the lawyers are really happy about having all this time to think, because I'd say it makes more work for them. But yes, I think they now have to move up their thoughts of how to -- I mean, the attorneys do look at the judges they're talking to and they try to figure out how to appeal to the majority of the court. I think they'll be looking at some of the opinions that especially some of the newer judges from the Obama administration have picked and figure out where they've come out and basically figure out how to make the most appealable arguments to a much bigger court. Then again, they probably would've had to do this anyway if the case went ... after a panel decision. So again, it's not a new thing; it's just kind of -- it's sped it up. But I do think now the court has -- the parties have more time to think about this, I can imagine people's summer vacations are going to be a bit curtailed as they figure out how to make use of their time.

Monica Trauzzi: How does this all line up with the presidential elections, and what are the potential political amplifications as we head into the fall, a new president come January, and when the decision might come down from the court?

James Rubin: Well, the one thing that's for sure now is that you're not going to have a decision I think before the election. I mean, it's pretty clear -- they're not hearing the case until September 27th. I think you could've had a panel decision before the election, but even that was pushing it. And then a rehearing after that would've been somewhere in the new year. You might have a decision before the end of the year from the panel -- from the ... panel. That's probably unlikely. You might not even have it until after the inauguration. I think it just pushes things further on, but at the end of the day the administration of -- the next administration is still going to be the party probably making the decisions about litigation beyond the D.C. Circuit. So I don't think it's changed things that much. It's really just moved it to the Supreme Court quicker, which as I said before has implications about whether there's a nine-judge panel or an eight-judge panel on the Supreme Court when this case finally gets there. We don't know if that's going to happen.

Monica Trauzzi: Right. So many moving parts -- so interesting. Thank you for coming on the show.

James Rubin: Thank you very much.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]



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