D.C. Circuit Court hears Clean Power Plan arguments, both sides hopeful for favorable ruling

The full bench of the U.S. Court of Appeals for the D.C. Circuit heard oral arguments Wednesday (Sept. 27) on the far-reaching federal Clean Power Plan as opponents and supporters of the Obama administration’s environmental and climate change came to the nation’s capital to make their opinions known.

The nearly four-hour “en banc” hearing before 10 members of the D.C. appeals court offered litigants a final opportunity to argue for or against the Environmental Protection Agency’s (EPA) precedent-setting mandate to force states to reduce carbon dioxide emissions by an average of 32% by 2030.

On Feb. 9, the U.S. Supreme Court issued a stay of President Obama’s historic Clean Power Plan, 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 D.C. appeals court 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.

According to a court transcript from the “West Virginia v. U.S. EPA” hearing, 16 lawyers made an appearance before a rare convening of the entire federal appeals court. U.S. 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.

ARKANSAS AG MAKES APPEARANCE IN D.C., SIERRA CLUB CALLS FOUL
In dueling press conferences after the hearing in Washington, D.C., including one with an appearance by Arkansas Attorney General Leslie Rutledge, both sides expressed confidence in a victory once the D.C. court renders a verdict.

Speaking at the “Senate Swamp” site on the U.S. capitol grounds with seven other Republican state attorneys general, Rutledge said the president’s plan to cut carbon emissions will skyrocket electric rates in Arkansas.

“With the slow economic growth, no Arkansas family or business owner, especially those on fixed incomes, can afford these higher costs,” Rutledge said in a statement. “This plan is illegal and thankfully the U.S. Supreme Court has put in place an unprecedented stay, preventing its implementation. I am pleased the D.C. Circuit has finally heard oral arguments in this case, and I am hopeful the court will recognize that the EPA overstepped and the plan should not be allowed to go forward.”

Meanwhile, environmental supporters of the EPA regulations held a conference call with media from the atrium at the D.C. appeals court. One of the groups represented at the conference was the representatives of the Sierra Club. Glen Hooks, director of the Arkansas chapter of the nationwide environmental group, criticized Rutledge for joining the federal lawsuit before the D.C. Circuit Court and for continuing to pursue legal means to halt the Clean Power Plan.

“While Attorney General Rutledge is in DC again, wasting Arkansas tax dollars and protecting polluters, Arkansans are busy building a clean energy future for our state,” Hooks said in a statement. “Our Attorney General is supposed to stand up for ordinary Arkansans.  Instead, Rutledge has repeatedly – and unsuccessfully – brought multiple expensive lawsuits aimed at dismantling clean air and clean water protections for our citizens. This is far worse than a mere dereliction of duty: Rutledge is actively using Arkansas tax dollars to scuttle important clean air and clean water protections.”

Hooks said Arkansas is already on track to meet its Clean Power Plan reduction goals due to increased use of renewable energy and less coal-fired power generation.

“Arkansas is adding hundreds of megawatts of clean solar and wind energy while our largest power plants are burning dramatically reduced amounts of dirty coal,” he said.

West Virginia Solicitor General Elbert Lin was the lead counsel for 27 state petitioners and industry opponents of the EPA’s chief “dirty air” regulations that will likely shut down most of the nation’s coal-fired power plant fleet. Lin’s team also include Peter Keisler, who represents the U.S. Chamber of Commerce and other industry groups; Allison Wood, who represents utilities; Paul Seby, North Dakota’s special assistant attorney general; Matthew Frederick, Texas deputy solicitor general; Thomas Lorenzen, representing electric cooperatives; Misha Tseytlin, Wisconsin solicitor general; William Brownell, who represents utilities; David Rivkin Jr., representing Oklahoma; and Laurence Tribe, who represents coal companies.

The Obama administration’s lead counsel was Department of Justice attorney Eric Hostetler. He was assisted by DOH attorneys Amanda Shafer Berman, Brian Lynk and Norman Rave. Attorneys Kevin Poloncarz, Sean Donahue, and Michael Myers represented state and environmental intervenors.

HEARING OUTCOME MAY TAKE MONTHS
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 later rescheduled Wednesday’s hearing before the full bench. D.C. Circuit Judge Merrick Garland, President Obama’s Supreme Court nominee, did not participate.

According to some legal analysts, a vacant seat on the high court following the death of Justice Antonio Scalia could further complicate the Clean Power Plan docket. Even after today’s much-anticipated hearing before D.C. Circuit Court, a ruling may not take place until next year when a new president is seated.

Once a ruling is handed down, the losing side is likely to appeal and send the case back to Chief Justice Roberts and the high court for a final verdict. If a new justice is not seated at the time, a tie vote would uphold whatever ruling the 10-member federal appeals court decides.