Developments continue as legal maneuvers impact the implementation of the Obama administration’s Clean Power Plan (CPP). As recent as February 9, a stay was granted halting the implementation of the CPP, pending a review of the merits of the rule by the D.C. Circuit Court. On May 16, in an unexpected twist, the U.S. Court of Appeals for the D.C. Circuit Court indicated it would hear challenges to the CPP sitting en banc^[1]. En banc means the full panel of circuit court justices will hear the case rather than the more traditional panel of three justices. The decision to have an en banc review has the potential to expedite the ruling and the implementation timeline of the CPP. Hearing arguments en banc reinforces the complexity and significance of the CPP.

Key Details

• On February 9, a stay of the CPP was granted by the Supreme Court, pending a hearing on the merits of the rule by the D.C. Circuit Court
• Some posit that the en banc hearing is due to the EPA’s “four corners” offense on MATS^[2], effectively forcing utilities into compliance while they litigated the MATS rule’s validity
• Oral arguments for the en banc hearing have been scheduled for September 27 versus the originally scheduled date of June 2
• Although this move results in a delay of almost four months, the en banc hearing may expedite the ruling. Traditionally, cases are heard by a panel of three justices. Either litigant can request that decisions be reviewed en banc. The court’s decision appears to be sua sponte^[3] (the court’s own initiative) with no influence from outside petitions^[4]
• The court’s decision for en banc review could be explained by the fact that only seven judges could participate in the case. This could have made it difficult for the court to rehear the case (later in the year) en banc after a three judge opinion
• The most likely explanation for the court’s order is that several of the judges concluded that some of the issues involved in the case, and perhaps the CPP itself, are of sufficient significance to warrant the full court’s attention

Implications

While the immediate effect of the en banc order is to delay oral arguments by almost four months, the ultimate effect could be to accelerate total review time within the D.C. Circuit Court. This is given the high likelihood of an en banc review following any decision by a three judge panel. In the interim, the Environmental Protection Agency is precluded from taking action to implement its regulations. The impact to CPP implementation timelines on states and generation owners is unknown at this time.

More Information

Washington Post: Supreme Court puts the brakes on the EPA’s Clean Power Plan

NY Times: Supreme Court Blocks Obama’s Limits on Power Plants

Forbes: U.S. v. Microsoft: High Court Punts Microsoft Case To D.C. Circuit

^[1] http://www.techlawjournal.com/glossary/legal/enbanc.htm

^[2] Utility MATS is the Environmental Protection Agency’s final rule on mercury and air toxics standards for coal and oil-fired electric utility steam generating units, issued in November 2014

^[3] http://legal-dictionary.thefreedictionary.com/sua+sponte

^[4] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/16/clean-power-plan-to-get-unanticipated-en-banc-review/

This report is part of ScottMadden’s Fossil Minute series. To view all featured Fossil Minutes, please click here.