Want a seat at the ‘circus’? Don’t be late

Source: Emily Holden, E&E reporter • Posted: Friday, September 23, 2016

Professional line-standers will stake out positions long before sunrise Tuesday outside the federal courthouse where judges could decide the fate of the biggest climate change regulation ever attempted in America.

The spots are coveted by lobbyists, utility chiefs and others who have spent the last several years following every twist and turn of U.S. EPA’s Clean Power Plan.

The regulation, little known to the general public, has captivated an audience of environmental advocacy groups, industry trade associations, states, academics and lawyers. Its day in court is expected to draw hundreds.

“It’s going to be quite a circus,” said Jeff Holmstead, an attorney with Bracewell LLC who is working with challengers to the rule. “I don’t think we’ve ever seen anything like this at the D.C. Circuit.”

The Clean Power Plan would speed a shift away from greenhouse gas-heavy power sources and has prompted broad questions about EPA’s authority and states’ rights (Greenwire, Sept. 20).

Nine judges at the U.S. Court of Appeals for the District of Columbia Circuit will hear arguments from suing states and power companies as well as EPA’s defenders. In the months to come, those judges will weigh in on whether the rule is legal — a decision that might set a new precedent and could be final if the Supreme Court declines to take up the case.

The court’s chief deputy clerk, Marilyn Sargent, estimates that about 400 seats will be made available in the courtroom and in two overflow rooms, one of which normally isn’t open but is being used to accommodate expected crowds.

Sargent said for high-profile cases, people sometimes show up 24 hours early.

“I’m really hoping it does not get like that,” she added.

More than a third of seats available at the courthouse are already reserved for the two sides arguing the case and their parties. Twenty-eight states are supporting lawsuits. Eighteen are allied with EPA. Dozens of trade groups, companies and advocates have signed onto one side or the other.

Sargent confirmed that the court has assigned 48 reserved seats for each side within the courtroom and 20 for each side in an overflow room. That means 136 of the approximately 400 seats are already taken. After the reserved seats, about 74 spots in the courtroom will be available to the first reporters and members of the public who arrive. Being in the courtroom may make it easier to see how judges and lawyers react, although live video feeds will be broadcast in the overflow rooms.

Each side is doling out its own tickets, including to state governors and attorneys general. The court does not decide how to divide them, a tricky task that Sargent joked she’s relieved she doesn’t have to handle.

Everyone else will have to wake up early.

‘A high-demand hearing’

Michael Glasser, director of the Washington, D.C., business linestanding.com, said he has a few reservations for people to hold spots for the oral arguments, although he said he doesn’t like to share the numbers. Line-standing services are more frequently used by lobbyists attending congressional hearings. They surfaced in the news a few years ago after reports that some people were paying $6,000 to hold a spot at the Supreme Court to hear oral arguments on gay marriage.

The Supreme Court has since banned spot holding for lawyers. But the D.C. Circuit still allows it for anyone attending, and Sargent said it’s common.

Glasser, who charges $36 per hour, said his earliest line-stander will arrive six or seven hours before the oral arguments begin at 9:30 a.m. Courthouse doors open at 8 a.m., meaning some people are planning to get there at the crack of dawn.

“This is a high-demand hearing,” Glasser said.

Attendees can’t use electronic devices during the oral arguments, so news of how the day is going will be valuable. Reporters and lawyers who are members of the bar association can bring their phones and computers in but must keep them turned off. Everyone else will have to check devices at the door, which Sargent said could slow down lines. She suggested leaving them at home.

With the ban on phones and computers, some groups are sending people specifically to take notes by hand.

The American Public Power Association will send Desmarie Waterhouse, a lawyer and vice president of government relations who has a spot reserved in an overflow room. Waterhouse will prepare a summary for APPA members soon after the arguments, which will run all day.

Bill Becker, head of the association that represents state air agencies, said that as far as he knows, none of his members will have staff attend.

“It is doubtful that any of our members would fly in to attend the argument without a ticket or assurance that they could get a seat,” Becker said.

At least four people from the Natural Resources Defense Council are hoping to go, although NRDC only has one reserved seat, for David Doniger, director of the Climate and Clean Air program and the main attorney focused on the Clean Power Plan.

Ben Longstreth, a senior attorney for NRDC’s Climate and Clean Air program, said he hopes to attend but hasn’t decided how early to arrive.

“I think it’s probably fair to say that this is probably as high-profile as they come for an environmental case, as far as I have seen,” Longstreth said.

But Longstreth noted that it “tends to be very hard to read too much out of an oral argument.”

“Judges ask questions that don’t really reflect their positions,” he said. Plus the court will post an audio recording of the daylong arguments soon after they end.

Still, for people who have been working on the rule, it’s hard to imagine missing the oral arguments.

“If you’ve been involved in the litigation, you want to know how the counsel is answering the questions and what questions are asked,” Longstreth said.

Sargent said anyone who really needs to be in the courthouse should plan to show up early.

“I usually am pretty sure we will have enough room for everybody,” Sargent said. “But I just can’t predict on this one.”

Click here to read E&E Publishing’s guide on the legal battles.

Reporter Rod Kuckro contributed.