The legal challenge to the Environmental Protection Agency’s Clean Power Plan, carbon emissions standards for existing coal-fired power plants, will be heard before the U.S. Court of Appeals for the D.C. Circuit for just three-and-a-half hours on Sept. 27, according to an order from the court. “The parties are advised that the Court’s limitation of oral argument should not be construed as an indication of the merit of any of the issues proposed for argument that are not included in the oral argument format,” the Aug. 17 order says.
The short timeline is something of a surprise, as the court had reserved up to two days for oral argument in its original schedule. Oral arguments in the case, which pits 27 states, along with a slew of utilities, electric generators, and trade organizations, against the EPA, had initially been slated to be heard in early June by a three-judge panel. In mid-May the court ordered that the oral arguments be rescheduled, and that the case he heard en banc, before the full court. Two of the 11 appeals court judges, Merrick Garland and Nina Pillard, are not participating in the case.
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.
Initially, the petitioners called for the appeals court to stay the rule, putting implementation on hold until the legal challenge had been resolved. The court denied this request and the petitioners appealed to the Supreme Court. In an unusual move, the high court in February granted the stay in a 5-4 decision, hinting to the case parties how the eventual Supreme Court ruling might look.
Just days later, Justice Antonin Scalia unexpectedly died. A large group of Republicans in Congress subsequently insisted they would not even consider a nominee to replace Scalia from President Barack Obama as his administration winds down. This move could leave the seat open until after the next president 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, chief judge of the D.C. Circuit appeals court.
The standoff has left the Supreme Court with eight justices, which has already resulted in multiple 4-4 decisions. In the case of a tie, which is possible in the Clean Power Plan lawsuit, the case would revert to the decision of the lower court, adding even greater importance to the Court of Appeals decision.
