The Clean Power Plan: Rule’s Legal Challenge Dealt Yet Another Unexpected Judicial Curveball

By Amelia Schlusser, Staff Attorney

With oral arguments in the lawsuit challenging the federal Clean Power Plan scheduled to commence in a few weeks, the parties received surprising news from the court. On May 16, the U.S. Court of Appeals for the D.C. Circuit announced that it is rescheduling oral arguments in West Virginia v. EPA for September 27, 2016. Moreover, the case will now be argued in front of all participating judges on the D.C. Circuit (known as en banc review), rather than the three-judge panel that was originally slated to hear the case. The court’s decision to grant en banc review was made independently, rather than at the request of any of the parties, which is an almost unprecedented move by the D.C. Circuit.

So what does the court’s decision to grant en banc review mean for the Clean Power Plan? Only the court knows for certain, but there are a few possible rationales for the D.C. Circuit’s announcement.

First, the court’s decision to grant en banc review may represent an attempt to speed up the judicial review process. If the case were argued in front of a three-judge panel as initially scheduled, the losing parties would have an opportunity to petition the entire court to review the panel’s ruling. By granting en banc review at the outset, the court has eliminated a potentially time-consuming stage in the litigation. Now, if the losing parties seek to appeal the D.C. Circuit’s en banc ruling, they must petition the Supreme Court to review the lower court’s decision.  This means the case may now reach the Supreme Court in a shorter timeframe than it otherwise would have.

Second, the court’s decision to grant en banc review may well signify that some or all of the legal issues raised in the dispute are of such significance that they should be decided by the entire court. Under the Federal Rules of Appellate Procedure, en banc review will generally only be available if it “is necessary to secure or maintain uniformity of the court's decisions; or the proceeding involves a question of exceptional importance.”

From a legal standpoint, the challenge to the Clean Power Plan involves the reasonableness of EPA’s interpretation of section 111(d) of the Clean Air Act and the authority exercised by the Agency under that provision. On a more ideological level, however, the dispute extends far beyond matters of statutory interpretation. At its heart, the case revolves around the federal government’s authority to address climate change by regulating greenhouse gas emissions. And because climate change has become such a politicized issue, the lines have been drawn almost exclusively along party lines.

If the D.C. Circuit’s decision to grant en banc review was motivated at least in part by the court’s view that the “question of exceptional importance” at stake in this case involves the federal government’s authority to address climate change by regulating greenhouse gas emissions, it is possible, and perhaps probable, that the outcome will be decided along ideological lines. Under this scenario, the Clean Power Plan may have a strong chance of being upheld; Democratic presidents appointed seven of the eleven active judges currently sitting on the D.C. Circuit. Two of the court’s judges—Chief Judge Merrick Garland and Judge Nina Pillard—did not participate in the court’s decision to grant en banc review. If both of these judges recuse themselves (though it not certain that they will), West Virginia v. EPA will be decided by nine judges, five of which are Democratic appointees and four of which are Republican appointees.

If, however, the “question of exceptional importance” identified by the court involves the legitimacy of EPA’s interpretation and implementation of section 111(d) the Clean Air Act, the D.C. Circuit’s announcement may indicate that EPA has an uphill battle ahead of it.  

In either case, it is likely that the future of the Clean Power Plan will ultimately be determined by the Supreme Court. Considering the current uncertainty regarding the future composition of the Court, the rule’s fate is anyone’s guess.