Last week, the U.S. Court of Appeals for the D.C. Circuit denied requests from more than two dozen states (including Wisconsin) and several energy industry interests to halt implementation of the EPA’s Clean Power Plan while their legal challenges to the regulatory regime are adjudicated.
Through the Clean Power Plan, EPA seeks to reduce carbon emissions from power plants by nearly one-third by 2030. The Plan sets national emissions standards and allows states to develop individualized plans to meet those standards. The D.C. Circuit’s decision not to stay implementation means that states will need to submit their compliance plans to the EPA, or seek extensions for doing so, no later than September 6, 2016. Implementation of state plans will be incremental, with fifteen years allowed for full implementation.
While Clean Power Plan challengers had argued that they faced irreparable harm from the initial steps of the Plan, the D.C. Circuit disagreed. In June, the same Court—though a different panel of three judges—denied several earlier petitions for review filed by states and energy industry interests before the EPA finalized the Clean Power Plan rules. See In re: Murray Energy Corp., 788 F.3d 330 (D.C. Cir. 2015).
None of this means that the Clean Power Plan will survive the ongoing legal challenges. And those challenges will now proceed relatively quickly (by legal standards). In the same order that denied the request to stay implementation, the D.C. Circuit set a short schedule for briefing and an accelerated argument date of June 2 (and possibly also June 3).
The argument date is significant for two reasons. First, the D.C. Circuit generally does not hear oral arguments between mid-May and mid-September of each year. The fact that these challenges have been scheduled for early June suggests that the D.C. Circuit sees some exigency (and at least a reasonably chance of success) in the arguments raised against the Clean Power Plan. Second, oral argument at the D.C. Circuit is typically brief. Even complex and high-profile regulatory challenges are rarely granted more than an hour of oral argument time. For the court to signal that it might grant enough argument time to stretch into a second calendar day suggests that the panel sees several discrete issues, possibly raised by different challengers, potentially worth extended exploration at oral argument.
Whether the challengers prevail in the D.C. Circuit—and none of the preliminary procedural rulings means that they will—this case will likely proceed to the Supreme Court. That means that this litigation over EPA’s authority to adopt the Clean Power Plan will likely stretch until at least 2017.
2/10 Update: The Supreme Court has now granted a stay. The case will continue on the merits in the DC Circuit and, likely, for Supreme Court review thereafter.