Court decides to bypass panel, delays arguments until fall

Source: Ellen M. Gilmer, E&E reporter • Posted: Tuesday, May 17, 2016

High-stakes litigation over the Obama administration’s Clean Power Plan will bypass review by a panel of three judges and instead go before the full U.S. Court of Appeals for the District of Columbia Circuit in the fall.

The D.C. Circuit announced the change in a short order yesterday, surprising some attorneys involved in the case.

Oral arguments had been scheduled for early June before a three-judge panel considered favorable for the administration. Now, the case will be heard en banc on Sept. 27.

En banc review — before the 11 active judges of the court — is considered extremely rare at the D.C. Circuit.

But with both sides signaling they would request en banc review if the panel did not rule in their favor, the court’s move streamlines the case’s path to the Supreme Court.

“Because this eliminates that time period before a panel decision and a request for en banc, it allows this case to proceed more rapidly,” Dorsey & Whitney attorney James Rubin said. “It definitely shortens the time period for this to get to the Supreme Court.”

Still, Supreme Court review is expected well into the next administration.

Of the 11 active judges on the D.C. Circuit, seven are Democratic appointees. But Judges Merrick Garland and Nina Pillard, both Democratic appointees, did not take part in the decision to reschedule the case to en banc review.

Garland is sitting out due to his ongoing Supreme Court nomination consideration. Pillard did not indicate her reasons for sitting out, but her decision does not necessarily mean she won’t participate in the litigation.

Natural Resources Defense Council attorney David Doniger, who is representing environmental groups backing the government, said he was still reviewing the order.

West Virginia Attorney General Patrick Morrisey (R) said he welcomed the new timeline and broader review.

“We welcome this unusual step by the full court, which confirms our long-held view that the Power Plan is an unprecedented and transformative rule of a kind the states have never seen from EPA,” he said in a statement. “We look forward to presenting our arguments in September.”