The court clash that isn’t happening yesterday

Source: Robin Bravender, E&E reporter • Posted: Friday, June 3, 2016

A courtroom brawl over the Obama administration’s signature climate change rule was expected to kick off Thursday — featuring a packed courthouse in Washington, D.C., long lines, throngs of reporters and a slew of heavy-hitting lawyers making their case before three federal judges.

That didn’t happen.

The U.S. Court of Appeals for the District of Columbia Circuit made waves last month by tossing out those plans. Instead of holding oral arguments before three randomly picked judges, the court rescheduled the arguments for September before the full court (Greenwire, May 17). For the dozens of lawyers involved in the behemoth lawsuit challenging the Obama administration’s Clean Power Plan, today is now just like any other.

Attorneys involved in the case — representing the federal government, environmental groups, industries, states and others — are recalculating their plans in light of the D.C. Circuit’s surprise move. After spending months preparing for three specific judges, they’ll now argue before a full court with a different makeup. Plans to hold “moot courts” to practice oral arguments have been changed, and participants got a bit of breathing room ahead of the showdown now slated for the fall.

“Memorial Day weekend was supposed to be a time everyone was kind of cramming,” said Sean Donahue, an attorney representing environmental groups supporting the regulation. Donahue, who lives in San Francisco, canceled his plans to travel to Washington, D.C., for the hearing. Some of those who hadn’t yet made plans for the holiday got “nice staycations,” he said.

And for both sides, “no doubt there were moot courts” scheduled, Donahue said. “I expect most of them would have been canceled.”

Tom Lorenzen, a lawyer representing electric power cooperatives opposed to the rule, said, “I’m sure that every attorney who was going to be arguing is thinking about how to cast their arguments now for a much broader court.”

Instead of the three-judge panel featuring two Democratic-appointed judges — which was seen as favorable to the administration — the case will now be heard by a full panel of active judges.

Two of the court’s 11 active judges did not participate in the decision to hear the case en banc: Supreme Court nominee Merrick Garland and Judge Nina Pillard, an Obama appointee. Those two judges may also sit out the arguments in September, which would leave five Democratic appointees and four Republican appointees on the panel.

Attorneys are also facing a “very interesting situation now,” Lorenzen said, where the full court isn’t bound by other panel decisions made by the D.C. Circuit. “An en-banc D.C. Circuit has the authority to revisit or revise prior panel decisions,” he said. “I’m certain that is something that the advocates are thinking about.”

Donahue said the extra time “will allow everybody to kind of distill and formulate their arguments better.” And the oral arguments will be different, he added, “because there will be more judges asking questions.”

Lawyers in the case are still waiting for the court to announce a schedule for the fall. The judges could announce one day or more of arguments and are expected to lay out a schedule for how much time will be devoted to each of the many legal issues in the case. And the judges who didn’t expect to be on the panel may spend a decent chunk of their summers poring over the lengthy legal briefs filed by both sides.

Even with the extra time, “I don’t think anyone is putting this aside,” Lorenzen said. “This is one of the most important environmental cases of our generation, and no one is taking this lightly, least of all the D.C. Circuit.”