Clean Power Plan

E&E's Gilmer and Reilly give behind-the-scenes take on arguments, reaction

What was the scene like inside the courtroom during the U.S. Court of Appeals for the District of Columbia Circuit's hearing of arguments in the lawsuit challenging U.S. EPA's Clean Power Plan this week? During today's OnPoint, Ellen Gilmer, a reporter for EnergyWire, and Amanda Reilly, a reporter for Greenwire, give their behind-the-scenes perspectives of this week's oral arguments. They also discuss the various timeline scenarios for a ruling and subsequent legal action.


Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today are Ellen Gilmer and Amanda Reilly. Both are reporters here at E&E Publishing. Ellen, Amanda, thank you both for joining me today. It's nice to have you on set.

Ellen Gilmer: Thank you.

Monica Trauzzi: So you were both present for the D.C. Circuit's marathon day of oral arguments in the lawsuit against the Clean Power Plan. What are your key takeaways from the arguments and your week of reporting, Ellen?

Ellen Gilmer: It's been a busy, busy week. I would say the key takeaway from Tuesday's, like you said, marathon session, is that the court is going to have to grapple with this issue of what standard of review do they even apply to this rule. Does this rule trigger a stricter standard of review where the court has to decide whether the Clean Air Act actually is clear about giving EPA authority to do this?

Monica Trauzzi: Amanda?

Amanda Reilly: Yeah, I would — to piggyback off of that, the Supreme Court came out with a decision recently. It's actually one of the late Justice Scalia's last opinions where he said, you know, in cases where rules are economically and politically significant, you have to take them with a measure of skepticism. So this is kind of where all this is coming from. You know, did Congress clearly state that EPA should put out something like the Clean Power Plan?

Monica Trauzzi: And, Ellen, after the arguments, you reported that critics are likely not going to win on the question of whether the rule is transformative. There's pretty strong agreement among the environmental community about that. Talk about that story.

Ellen Gilmer: Certainly that's what the environmental community would say. They believe that, while the court will have to grapple with this issue and was asking a lot of questions to try to determine whether the rule should be subject to that stricter standard, the environmental community thinks that it's very unlikely that a majority of judges are going to conclude that they're going to end up deciding on that issue.

Monica Trauzzi: Amanda, talk a bit about your experience in the courtroom that day. I know everyone lined up very early in the morning. How was — take us inside the room. How was that day from a reporter's perspective?

Amanda Reilly: Sure. Well, I think Ellen and I arrived at about 6:30 a.m. to line up at the courthouse, and there were already dozens of people waiting to line up. I mean, it attracted basically the top environmental and energy attorneys and experts in the country, you know, all together in one courtroom. As you said, there was lots of standing in line, little food, no access to cell phones. I think it was just — it was quite the experience. It also attracted top Obama administration officials. U.S. EPA Administrator Gina McCarthy sat in on the arguments until about 1 in the afternoon. Other top agency officials were there the entire day. Brian Deese, one of President Obama's top advisers, was there in the morning as well.

Monica Trauzzi: Ellen, how was the day for you?

Ellen Gilmer: It was — I would agree it was a long day. What I thought was interesting in the courtroom, there were so many people jammed in there, the court marshals really applied the rule of law. There were top officials — maybe not top officials, but top attorneys on both sides who were being reprimanded for having a bottle of water, putting their feet up on the benches, you know, things like that. So they kept a really tight ship there.

Amanda Reilly: Also rows of people made to scoot in just a little bit closer to fit just a few more people into the courtroom.

Monica Trauzzi: So we've all heard many predictions about the outcome this week, but in terms of timing, what are the different scenarios we're looking at for how this may all play out, Amanda?

Amanda Reilly: Well, I think everyone kind of agrees that we're not going to see a decision before the election. So we're looking at some time after that, probably early 2017, but that is still up in the air. The timing of when the D.C. Circuit's decision comes out affects when the Supreme Court is going to decide whether to take it up because I think everyone expects that there will be — petitioners will — or EPA or depending on the outcome will ask the Supreme Court to take up the case. So, the court may decide to take it up in the spring or they may wait until their fall session to make that decision. So I think the long story short is this is going to be going on for quite a while still.

Monica Trauzzi: And, Ellen, then there's that question of whether there's a ninth justice by that point.

Ellen Gilmer: Absolutely. And by the fall of 2017, it's looking a lot more likely than if the court got to it sooner. It seems more likely that someone will be confirmed as the ninth Supreme Court justice, but there's always a lot of uncertainty with that question.

Monica Trauzzi: So you both did some fantastic reporting this week. What's the reaction been from our readers?

Amanda Reilly: Well, I think our readers like to see sort of the wonkier legal aspects of it, which is kind of what we do here. You know, in the courtroom we — or ahead of the arguments, we put together this little legal guide. We have information that's been on our website for months on the case. Saw some printouts of that in the courtroom the day of. I think Senator Markey was spotted wandering around the basement of one of the Senate buildings clutching one of our stories. Robin Bravender wrote one of the first stories, I think, out of the gate on kind of how the arguments were going.

Ellen Gilmer: And they're — our readers are definitely, like Amanda said, very into the wonky details. I wrote a story Tuesday night that laid out what happened in each section of arguments, which became so technical that nobody would read that other than an E&E reader. And I think that they were interested to know what it was like in the courtroom that day till the very end.

Amanda Reilly: I think, to add to that, you know, a lot of the reporters kind of had trickled out throughout the day, but we were among the few who sat through the entire argument.

Monica Trauzzi: You guys stuck it out. Well, listen, thank you for joining me, and I hope you both get some sleep this weekend.

Amanda Reilly: Thank you.

Ellen Gilmer: Thank you.

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

[End of Audio]



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