Attorneys on both sides of the lawsuit against the Environmental Protection Agency’s Clean Power Plan will have an additional judge to win over during oral arguments next week, following a court order released Wednesday.
In May, the U.S. Court of Appeals for the D.C. Circuit ordered the case be heard “un banc” by the full panel of judges instead of the usual three-judge panel. At that time, two of the 11 appeals court judges, Chief Judge Merrick Garland and Judge Nina Pillard, elected not to sit on the en banc panel. As of Thursday, it appears Pillard will join her colleagues in hearing the case.
Garland, however, will still sit this one out, likely due to his nomination to the Supreme Court. “The Clerk is directed to notify the parties that the en banc court assigned to hear this case will consist of all active Circuit Judges except Chief Judge Garland, who will not participate in this matter,” according to the court order.
The suit against the Clean Power Plan, which requires states to develop action plans to meet federally set carbon emissions reductions targets, was filed the day the final rule was published in the Federal Register, the legal starting gun for such a challenge. The lawsuit pits a group of 27 states, led by West Virginia, along with numerous utilities, fossil energy companies, and interest and trade groups, against the Environmental Protection Agency.
The 10-judge panel that will hear oral arguments in the case Tuesday consists of six judges appointed by Democratic presidents and four appointed by Republican presidents.
Initially, the petitioners in the case called for the appeals court to stay the rule, suspending implementation until the legal challenge had been resolved. The appeals court denied this request and the petitioners appealed to the Supreme Court. In an extremely unusual move, the justices in February granted the stay in a 5-4 decision, hinting to the case parties how the eventual Supreme Court battle might look.
Just days later, Justice Antonin Scalia unexpectedly died. A large group of Republicans in Congress, unwilling to allow President Barack Obama to put another justice on the court so late in his term, insisted the nomination should be left to his successor. This move could leave the seat open until after the next administration takes office in January 2017. The Republicans, led by Senate Majority Leader Mitch McConnell (R-Ky.), have stayed true to their word, refusing to hold any hearings for Obama’s nominee, Garland.
The standoff has left the Supreme Court with eight justices and the potential for tie rulings, as has been the case in a couple opinions since. In the case of a tie, the case would revert to the decision of the lower court, adding even greater importance to the Court of Appeals decision. It is also possible that if the ninth seat remains open, the Supreme Court may simply decline to hear the case.
The EPA and West Virginia Attorney General Patrick Morrisey (R) declined to comment on the development.