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The Full D.C. Circuit Will Hear Challenges to EPA’s Clean Power Plan

May.18.2016

Acting on its own initiative, the U.S. Court of Appeals for the District of Columbia Circuit on Monday rescheduled oral argument in the consolidated challenges to the U.S. Environmental Protection Agency’s (EPA’s) Clean Power Plan, the “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (Oct. 23, 2015).1 The Court canceled the previously-scheduled June 2 (and possibly June 3) hearing before a three-judge panel, and instead ordered that the case be heard en banc by nine active D.C. Circuit judges on September 27, 2016. That order apparently marks the first time the Court has referred a case for en banc review after merits briefs were submitted to a panel and before that panel’s scheduled argument.

What did the Court order?

While the parties were awaiting the D.C. Circuit's ruling on competing proposals for the format and time to be allotted for panel oral argument in the consolidated challenges to the Clean Power Plan, the Court issued an unanticipated order on May 16, 2016, rescheduling oral argument. Rather than being heard by a three-judge panel sitting on June 2 and possibly also on June 3, 2016, the case will now be argued on September 27, 2016 before the Court sitting en banc.

The order was issued per curiam, which means that it came from the court at large; its authorship cannot be attributed to a single judge. Nine judges are listed on the order—Judges Henderson, Rogers, Tatel, Brown, Griffith, Kavanaugh, Srinivasan, Millet, and Wilkins. Chief Judge Garland and Circuit Judge Pillard did not participate. Chief Judge Garland has recused himself from participating in any cases while his Supreme Court nomination is pending. Judge Pillard did not explain her recusal, though she had earlier recused herself from en banc proceedings in a related case. It is likely that neither judge will participate in the hearing or decision, making this a nine-judge court, although that is not set in stone.2

The Court did not resolve the competing proposals for oral argument; instead, it indicated that a separate order will issue regarding allocation of oral argument time. Conceivably, that order could issue as late as early September.

Why did the Court decide to hear the case en banc?

Under statute and court rules, a vote to consider a case en banc may be requested at any time by any member of the panel or an active judge of the Court, and a majority of the active judges may order en banc review.3 En banc hearings are disfavored, however, and will not be ordered unless consideration by the full Court is necessary to address an intra-circuit conflict or the case involves questions of exceptional importance.4 This case does not involve an intra-circuit split, and so the order must have been issued because of the case's exceptional importance.

En banc hearing and rehearing are rare in the D.C. Circuit. The Court typically hears about one en banc case each year. Even rarer are instances in which the Court has decided to hear a case en banc before a panel decision has been issued and on its own motion, rather than on a petition from one or more parties following a panel decision.5 There are a handful of cases in which the Court decided to hear a case en banc on its own initiative from the beginning of the appeal, such as United States v. Microsoft Corporation (Nos. 00-5212 and 00-5313). There the Court ordered on the day the appeal was docketed that any proceedings be heard by the Court sitting en banc.6 However, there does not appear to be any prior instance in which the Court has referred a case for en banc review after merits briefs were submitted to a panel and before that panel’s scheduled argument.7

Although the Court did not disclose its reasons for its unusual move, there are a number of possible explanations, including the undeniable fact that this case presents questions of great significance for the electric generating industry and its consumers, as demonstrated by the participation in this litigation of almost every State in the country, dozens of industry groups and trade associations, and myriad environmental and other interest groups.

The U.S. Supreme Court's earlier (and equally extraordinary) stay of the Clean Power Plan pending completion of all judicial review likely also was a factor in the D.C. Circuit’s decision to hear the case en banc, as that stay signaled the Supreme Court’s clear interest in the issues and its own sense that the case is unique and one of vital importance. Moreover, the stay likely allayed any concerns among the D.C. Circuit Judges that an expedited decision on the merits was required, as one effect of the stay was to postpone indefinitely the States’ obligations under the rule to submit initial state plan outlines by September 2016.8

Moreover, with the passing of Justice Scalia in February, the Supreme Court is evenly divided among justices who voted for and against the stay. The D.C. Circuit's order thus may be anticipating the possibility of a deadlocked Supreme Court even into 2017 or possibly longer. If the Supreme Court remains deadlocked on the merits of the Clean Power Plan for the duration of its review, the D.C. Circuit’s decision will effectively become the final decision on the merits, no matter which way the Court rules. Thus, the order may reflect the D.C. Circuit’s determination that its resolution of this case will carry more weight in the public’s eye if its merits decision is rendered by the full Court of Appeals rather than a three-judge panel.

What are the implications for the outcome of this case?

It is difficult to say with certainty what substantive implications an en banc hearing or decision will have for this case beyond the fact that an en banc court can overturn or cabin previous panel decisions and that advocates will face more questions from a broader ideological spectrum of judges at argument.

Party lines are historically not the best predictors of how judges will rule on a case. That said, three notably conservative judges who historically have been more skeptical of agency action, but who were not on the panel (namely, Judges Brown, Griffith, and Kavanaugh), will now be among the judges who hear the case. EPA can therefore expect to face tougher questioning at argument, and the rule’s challengers may find they have some heretofore unexpected allies during questioning.

Whichever way this case is decided, because this case will be decided by nine judges instead of three, there likely will be a strong dissent from more than one judge accompanying any majority decision. That dissent could potentially be influential when the case finally reaches the Supreme Court.


1 See State of West Virginia et al. v. EPA et al., Lead Case No. 15-1363.

2 No senior judges will sit on this case in the course of en banc review. In the D.C. Circuit, senior judges do not sit on en banc cases unless they were a member of the original panel. See Handbook of Practice and Internal Procedures for the United States Court of Appeals for the District of Columbia Circuit, Section XII.B.2 (governing rehearing en banc). There were no senior judges on the original panel, so none will participate in the en banc hearing or decision.

3 See 28 U.S.C. § 46(c); Fed. R. App. P. 25(a); Handbook of Practice and Internal Procedures, supra, Section XII.B.2.

4 Fed. R. App. P. 32(a); Handbook of Practice and Internal Procedures, supra, Section XII.B.2.

5 Although unusual, the Handbook does provide that “[a] judge may also suggest en banc consideration prior to the panel decision; on occasion this has been done by the panel itself.” Handbook of Practice and Internal Procedures, supra, Section XII.B.2.

6 See United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).

7 The D.C. Circuit’s Handbook contemplates that initial en banc decisions should be made early in the case. It provides that “[i]f a party wishes a case to be heard initially en banc, counsel ideally should file the petition within the first 30 days after docketing, but in no event later than the date on which the appellee’s or the respondent’s brief is due.” Handbook of Practice and Internal Procedures, supra, Section XII.B.2.

8 In denying the motions to stay, the original panel granted the Petitioners’ requests for expedited briefing and argument. See Per Curiam Order (Case No. 15-1363) (Jan. 21, 2016) [#1594951]. The Supreme Court ultimately stayed the rule on February 9, 2016, pending disposition of the applicants’ petitions for review in the D.C. Circuit and future petitions for a writ of certiorari.


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Thomas A. Lorenzen
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