States aim for conservative judges to hear challenge

Source: Emily Holden and Rod Kuckro, E&E reporters • Posted: Monday, August 17, 2015

A federal court bid last week by 15 states to block U.S. EPA’s Clean Power Plan offered few new arguments but illuminated a key legal strategy: retaining the same three Republican-appointed judges who considered an earlier, premature challenge to the regulation.

Led by West Virginia, the states asked the U.S. Court of Appeals for the District of Columbia Circuit to take the unusual step of granting an emergency stay of the greenhouse gas standards for power plants. That would put the rules on hold pending the resolution of litigation.

But from a legal strategy perspective, the most important document filed at the D.C. Circuit may have been not the stay request but a motion to consolidate the new filing with a previous D.C. Circuit case on the greenhouse gas rules when they were in their proposal stage, E&E’s Jeremy Jacobs reports (Greenwire, Aug. 14).

If the D.C. Circuit agrees to consolidate the two cases, that may preserve the three-judge panel that heard the earlier case. The states were explicit in their desire for those three judges.

“In short, considerations of judicial efficiency militate strongly against requiring a new panel to become familiar with these arguments. … The Murray and West Virginia panel is by far the best positioned to rule on the Emergency Petition within the requested timeframe,” they wrote, referring to the earlier cases.

The judges who considered the previous challenge from the Ohio-based Murray Energy Corp. and more than a dozen states were Brett Kavanaugh, Thomas Griffith and Karen Henderson. All three were appointed by Republican presidents, and Kavanaugh, in particular, has a track record of ruling against EPA in high-profile cases.

However, the D.C. Circuit’s procedural rules are very unclear about whether and when the same three-judge panel is assigned to new cases. In short, the court has a great deal of discretion on the matter.