Challengers want 5 hours for epic court brawl

Source: Robin Bravender, E&E reporter • Posted: Monday, May 2, 2016

The 157 parties suing U.S. EPA over a major climate change rule are asking federal judges to hear five hours of oral arguments over two days in June.

The request is a major departure from the amount of time usually allowed for lawyers to make their case in court. Arguments in a typical case before the U.S. Court of Appeals for the District of Columbia last about 20 to 40 minutes, with several cases heard on the same day. But both foes and supporters of the Obama administration’s Clean Power Plan argue that this epic legal battle deserves more time.

In their request to the court yesterday, EPA’s challengers — including 27 states and many industry groups — asked judges on the D.C. Circuit to spread out arguments over two days, a move the court previously signaled it would consider. That lengthy schedule is appropriate, petitioners said, “given the large number of issues raised in this litigation and their scope, the increased word allotment for merits briefing, and the technical complexity of the rulemaking.”

The Clean Power Plan, a rule to curb power plants’ greenhouse gas emissions, “is perhaps the most costly, complex, and far-reaching regulatory program in American history,” EPA’s challengers said. The rule is currently on hold after opponents persuaded the Supreme Court to freeze it while the lower court battle plays out.

EPA and its allies, meanwhile, urged the court to keep the arguments shorter.

The agency — along with 18 states, environmentalists, industry groups and other supporters — suggested that the arguments be completed in one day, lasting a total of three hours and 10 minutes.

Both sides urged the court to break up arguments into blocks, allotting time for specific challenges over EPA’s authority to issue the rule, arguments over the procedures used by the agency and others.

While most of the petitioners signed on to a single proposal, the conservative Competitive Enterprise Institute and several other groups and individuals filed a separate proposal urging oral arguments over EPA’s consideration of the rule’s costs and benefits.

‘Precedent’ for lengthy disputes in big cases

The D.C. Circuit occasionally has allowed for lengthy oral arguments in other complex cases, including a major 2012 dispute over the Obama administration’s climate policies.

The climate lawsuits challenged EPA’s finding that greenhouse gases “endangered” public health and welfare, the agency’s “tailpipe” rule setting greenhouse gas standards for cars and light-duty trucks, and two other regulations regarding when and how stationary sources would be regulated under the Clean Air Act.

In that case, the judges heard oral arguments over two days in February 2012, scheduled for two hours and 10 minutes on Day One, followed by two hours and 30 minutes on Day Two. Arguments often go longer than scheduled.

Tom Lorenzen, an attorney at Crowell & Moring representing electric cooperatives challenging the Clean Power Plan, said those arguments were “almost identical in length to industry’s proposal here.” He added, “This proposed schedule actually seems in line with the amount of time the D.C. Circuit has devoted to climate change cases, which are, after all, among the most important environmental cases of our generation.”

Jim Rubin, a partner at Dorsey & Whitney and former Justice Department attorney, said there is “certainly precedent for long oral arguments in significant cases and where there are multiple parties.”

The Clean Power Plan case “is certainly not the most significant or complex case the court has ever faced,” but “judges are human so only have so much time they can sit, absorb and engage in a given time.” Still, he said, “I think the court will be likely to schedule a relatively lengthy oral argument, including beyond the three hours proposed by EPA.”

The filings from both sides also indicate which lawyers are gearing up to argue, although that could change depending on what the parties decide after the court issues its argument schedule.

EPA’s supporters listed five administration attorneys: Justice Department lawyers Eric Hostetler, Amanda Berman, Chloe Kolman, Norman Rave and Brian Lynk. They also listed Kevin Poloncarz, who’s representing power companies supporting the rule; and Sean Donahue, who’s representing environmental groups in the case.

State and industry challengers also noted their planned roster of lawyers: Elbert Lin, West Virginia’s solicitor general; Peter Keisler, who represents the U.S. Chamber of Commerce and other industry groups; Allison Wood, who represents utilities; Paul Seby, North Dakota’s special assistant attorney general; Matthew Frederick, Texas deputy solicitor general; Lorenzen, representing electric cooperatives; Misha Tseytlin, Wisconsin solicitor general; William Brownell, who represents utilities; David Rivkin Jr., representing Oklahoma; and Laurence Tribe, who represents coal companies.

Click here to read the rule challengers’ request.

Click here to read the request from EPA and its backers.

Click here to read the petition from CEI.