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DC Circuit Delays EPA’s Clean Power Case, Calls for Full Court Review

In a surprise move, the U.S. Court of Appeals for the DC Circuit this week canceled the traditional three-judge hearing in a case that could decide the fate of the Environmental Protection Agency’s (EPA) Clean Power Plan (CPP), its landmark rule to limit carbon dioxide CO2 emissions from the nation’s power sector.

In an order issued Monday, the court pushed back oral arguments in State of West Virginia, et al. v. Environmental Protection Agency from June 2 to Sept. 27, saying the case will go before the full court. Normally decisions are made by a three-judge panel. Challengers to the decision  then can request an en banc proceeding, which is usually denied.

Dropping a step can speed the issue on its way to the U.S. Supreme Court -- widely considered its final destination.

The revised timeline also “suggests that the DC Circuit’s decision is not likely to be released before the elections,” according to ClearView Energy Partners LLC analyst Christi Tezak. This “limits the Obama administration’s ability to actively defend the president’s legacy” on climate change.

Electric Reliability Coordinating Council Director Scott Segal said the court’s decision is “not good for supporters of the rule...The basis for undertaking en banc consideration is that ‘the proceeding involves a question of exceptional importance.’...Supporters of the rule have portrayed the case as essentially a garden-variety administrative law case that can be disposed of by simply citing to agency deference. It would appear the DC Circuit sees it differently.”

This week’s order comes after the Supreme Court’s surprising decision earlier this year to stay implementation of the CPP until legal challenges to the rule are resolved (see Daily GPI, Feb. 10).

“So much about the Clean Power Plan has defied precedent,” Segal said. “First, the rule itself is based on an absolutely unprecedented interpretation of the Clean Air Act. Then, the Supreme Court offered up a first-ever stay of a rule of general applicability. And now this.”

West Virginia Attorney General Patrick Morrisey, who has helped lead a coalition of states in challenging the EPA, said the group welcomed “this unusual step by the full court, which confirms our long-held view that the [CPP] is an unprecedented and transformative rule of a kind the states have never seen from EPA. We look forward to presenting our arguments in September.”

Supporters of the rule also welcomed the revised timeline, citing the potential to streamline the review process.

“We welcome the DC Circuit’s order providing for immediate en banc review of the [CPP], and look forward to presenting the strong legal and factual basis for the [CPP] to a full complement of active judges on the court,” said Tomás Carbonell, lead attorney at the Environmental Defense Fund, a party to the case. The “order will enable the full DC Circuit to resolve the legal challenges to the [CPP] immediately and without delay -- an especially important development given the urgent threat of climate change to the health and security of communities and families across our nation.”

In a preview of its 2016 Annual Energy Outlook, the Energy Information Administration this week outlined its latest projections, which suggest that natural gas-fired generation could grow “significantly” through 2041 under the CPP compared with a no-CPP scenario (see Daily GPI, May 17).

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