U.S. Court of Appeals sets schedule for next month’s hearing on Clean Power Plan

The U.S. Court of Appeals for the District of Columbia has set a hearing schedule for arguments to be heard on President Barack Obama’s Clean Power Plan before the full bench just over a  month from now.

According to the schedule filing, the D.C. appeals court will allow just over three hours and 30 minutes for “en banc” oral arguments from state petitioners, the Environmental Protection Agency (EPA) and intervenors on the centerpiece of the president’s Climate Change policy. Elbert Lin, solicitor general for West Virginia, will lead off the case for state petitioners at 9:30 a.m. on Sept. 27.

The U.S. Supreme Court first issued a stay of President Obama’s historic Clean Power Plan on Feb. 9, blocking the 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 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 in May, 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.

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 General 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. 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.

Despite the court setbacks, the EPA has moved forward with plans to fully implement the president’s carbon emissions standards, setting up a new Clean Power Plan website with thousands of pages of documents and resources for states wishing to move forward and develop plans to cut carbon pollution from power plants. Unlike Arkansas, some states have chosen to stay engaged with federal regulators on strategies and plans in anticipating the courts will rule in the EPA’s favor. On its Clean Power Plan website, the EPA offers a subtle warning concerning the high court’s stay.

“The (Supreme) Court’s decision was not on the merits of the rule. EPA firmly believes the Clean Power Plan will be upheld when the merits are considered because the rule rests on strong scientific and legal foundations,” EPA officials said. “For the states that choose to continue to work to cut carbon pollution from power plants and seek the agency’s guidance and assistance, EPA will continue to provide tools and support.”