D.C. Circuit Court reschedules challenges to Obama administration’s Clean Power Plan

The U.S. Court of Appeals for the District of Columbia on Monday (May 17) unexpectedly rescheduled next month’s challenges to President Obama’s Clean Power Plan to be heard by the full bench instead in mid-September.

The U.S. Supreme Court issued a stay of President Obama’s historic Clean Power Plan on Feb. 9, blocking the federal Environmental Protection Agency (EPA) from implementing the far-reaching rules that would dramatically reduce carbon dioxide emissions across the U.S. by shutting down most of the nation’s coal-fired power plant fleet.

In the Supreme Court ruling, Chief Justice John Roberts issued the stay pending disposition of the Clean Power Plan opponents’ petitions for review in the U.S. Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, which forces the lower court to deliver its record in the case so that the higher court may review it.

Originally, a three-judge panel of the federal appeals court had planned to hear oral arguments on the merits of the states’ case on June 2, but now the controversial EPA mandate will be heard before all nine judges on the D.C. Circuit Court, including Supreme Court nominee Merrick Garland.

In its “en banc” directive filed with the court on Monday, the nine-judge panel orders all parties and friends of the court to provide copies of all final briefs and appendices to the court by June 1, 2016. Federal appellate courts sometimes grant rehearing en banc to reconsider a decision of a panel of the court in which the case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court.

Now, the centerpiece of President Obama’s climate change policy will be dissected by the full court on Sept. 17. In Monday’s vote on the rare en banc order, Chief Judge Garland and Circuit Cornelia Judge did not participate in the decision. The D.C. appeal court will issue a separate order at a later date regarding allocation of oral argument time, the filing states.

Initially, West Virginia and Texas led Arkansas and 22 other states in challenging the EPA’s power plan on Oct. 23, 2015, the day the full rules were published. The states argue the EPA exceeded its authority by double regulating coal-fired power plants and forcing states to fundamentally shift their energy portfolios away from coal-fired generation among other reasons.

After President Obama and EPA officials unveiled the final version of their Clean Power Plan (CPP), Arkansas Attorney Leslie Rutledge said the federal mandate unlawfully exploits Section 111(d) of the Clean Air Act to force states to come up with plans to dramatically reduce carbon dioxide emissions by an average of 32% by 2030.

The original stay request filed in August by Morrisey’s office with the EPA asks the agency to “halt implementation of this onerous regulatory scheme until the courts have a chance to rule on its legality.” Rutledge and Morrisey both said they believe they have a strong case on the merits and will prevail in court once their case is heard.

In early March, Arkansas Department of Environmental Quality (ADEQ) Director Becky Keogh and state Public Service Commission PSC Chair Ted Thomas halted stakeholder compliance meetings on the state’s response to the implementing the far-reaching carbon emission rules due to the high court’s controversial stay in February.

“The (ongoing) stakeholder meeting is no longer necessary,” Keogh and Thomas said in a statement after the high court ruling. “The (ADEQ and PSC), in consultation with stakeholders, will continue to evaluate the impacts of potential environmental and energy policies in the State.”

At the request of Gov. Asa Hutchinson, Keogh and Thomas began the stakeholders’ group first meeting in the fall to get input on a new “emissions standard” roadmap for putting Arkansas on track to cut carbon pollution from the power sector 36% below 2005 levels by 2030.

“The Supreme Court issued a stay of the EPA’s Clean Power Plan which Arkansas opposes and is challenging as a usurpation of the state’s prerogative. As a result of the stay, it’s clear we should halt any action of implementation during the stay, and I appreciate the leadership of Director Keogh and Chairman Thomas on this important issue,” Gov. Hutchinson said after the high court ruling.

According to state regulators, Arkansas will not have to not have to meet the EPA deadline to submit a final implementation plan to comply with the president’s plan by Sept. 6, 2016.

The court delays will also likely push back the Sept. 6, 2018 deadline for states to evaluate various approaches to comply with the federal emission rules, demonstrate engagement with the public, and lay out steps and processes necessary to submit a final plan.