Experts ponder whether Supreme Court will have ultimate say

Source: Amanda Reilly, E&E reporter • Posted: Friday, September 16, 2016

Speculation over the next steps in the legal battle over the Obama administration’s signature climate rule is in full swing.

While oral arguments in front of appeals court judges won’t take place until Sept. 27, attorneys closely following the litigation are already pondering whether the Supreme Court will take up the Clean Power Plan after the U.S. Court of Appeals for the District of Columbia issues its decision.

Not all of those attorneys think that the high court, which still has only eight justices since Justice Antonin Scalia died in February, would agree to hear an appeal of the lower-court decision.

“The D.C. decision is very consequential. I’m not all convinced that the Supreme Court will take it up,” Oklahoma Attorney General Scott Pruitt (R) said yesterday at a Washington, D.C., event hosted by the conservative Federalist Society.

But if the high court does take up the Clean Power Plan, attorneys are mining past cases for hints as to where the justices will fall. Both sides have found prior decisions that they think the justices can lean on in deciding the case.

U.S. EPA’s Clean Power Plan requires states to develop and implement plans to reduce carbon dioxide emissions from existing power plants. It incorporates three “building blocks”: heat rate improvements at coal-fired steam plants, switching to natural-gas-fired plants and switching to renewable forms of energy.

Foes of the rule, including 27 states, have raised a plethora of legal challenges. Among them: that EPA overstepped its Clean Air Act authority in issuing the rule, that EPA crafted a final rule that was substantially different from its proposal and that the rule is unconstitutional because it coerces states into a complex regulatory scheme.

The Supreme Court has already played a role in the litigation, issuing a surprising stay of the rule in February in a 5-4 decision backed by the court’s conservative wing until the massive litigation is resolved. In an extremely rare move, the D.C. Circuit pushed back arguments that were originally scheduled for June in front of a three-judge panel to Sept. 27 in front of the full court.

At the upcoming oral arguments, the degree to which the rule is transformative and unique will likely play a big role. Some foes of the rule see the makeup of the court as a hindrance, as seven of the court’s active 11 judges were appointed by Democrats. Two Democratic appointees — Chief Judge Merrick Garland, whom President Obama nominated for the open Supreme Court seat, and Judge Nina Pillard — have sat out of proceedings in the case, but their absence still leaves a leftward tilt on the panel.

“We feel a little bit like, going into the D.C. Circuit, that we’re fighting an uphill battle there with the makeup of the court,” Pruitt said yesterday, “but I’m hopeful that the strength of our arguments that there’s some persuasion there about the importance of the states.”

It’s unclear yet when exactly the D.C. Circuit will issue an opinion in the case. After the ruling, it will take the votes of four justices for the Supreme Court to grant a petition for writ of certiorari.

Like Pruitt, David Doniger, director of the climate and clean air program at the Natural Resources Defense Council, said yesterday at the Federalist Society panel that the D.C. Circuit’s decision will be “very, very important.”

“For whatever reasons the Supreme Court entered the stay, the complexion of things out there has changed because the fifth vote is gone,” Doniger said. “And it might well be the D.C. Circuit writes an opinion that the court declines even to review because either there aren’t four votes for cert or there aren’t the prospect of five votes to reverse.”

If the Senate continues to block Obama’s nominee for the open seat, or if there is wrangling over the next president’s nominee, there’s the possibility of the Supreme Court’s vacancy lasting well into next year. A 4-4 split decision would uphold the D.C. Circuit’s ruling.

David Rivkin, a partner at Baker & Hostetler LLP who will be arguing the case on Sept. 27 on behalf of state challengers, said he was hopeful that the Supreme Court would knock down the rule.

He pointed to National Federation of Independent Business v. Sebelius, in which the Supreme Court found that the Medicaid expansion under Obamacare was unconstitutional.

Rivkin said that the court’s 2012 finding in the case that the expansion was coercive could help out challengers to the Clean Power Plan.

“Here we have something 10 times worse,” Rivkin said of the Clean Power Plan. “If this is not a gun to a head, then nothing is a gun to the head.”

But Doniger yesterday predicted that, even with the vacancy, there would be six votes in the Supreme Court for upholding the Clean Power Plan — which would likely mean Chief Justice John Roberts and Justice Anthony Kennedy joining the court’s more liberal wing.

“Look at cases that have reached the Supreme Court … since 2007 on either climate change or the power sector,” Doniger said. “And you’ll find at a minimum five votes, and a maximum eight votes, and often six votes, including Justice Roberts, to uphold government federal regulatory approaches under the Clean Air Act or the Federal Power Act.”

Doniger added that he believes the high court issued the stay of the program on a 5-4 vote because justices made a quick decision based on an “apocalyptic vision” of skyrocketing energy prices and blackouts that has not come true.

“When you get this in front of the D.C. Circuit,” Doniger said, “and they write an opinion and you get this up on cert petitions — I think the Supreme Court is going to say, you know, we were had.”

Rivkin, on the other hand, described himself as “very optimistic” that Kennedy would be in challengers’ camp on the constitutional claims.

“If this isn’t coercion, then 30 years of Supreme Court cases have no content,” Rivkin said.