D.C. court makes rare decision to bypass three-judge panel for Clean Power Plan review

In an unusual move, the D.C. Circuit Court of Appeals announced that oral arguments to assess the merits of the EPA’s Clean Power Plan will now take place before a nine-judge panel, bypassing review of challenges by a three-judge panel. The original three-judge panel was scheduled to begin on June 2; the date for the hearing before the larger panel, or en banc court, has now been moved to September 27.

The court did not explain its decision to reschedule arguments, but the measure is generally expected to speed up the litigation process because it precludes parties from appealing a ruling to the court’s full panel.

Normally, the case would start with the three-judge panel, and because it’s a controversial issue, the loser would likely ask for en banc review by the full Court of Appeals before appealing to the Supreme Court itself.  (Especially if the Supreme Court lacks a ninth member, making any case it hears a wild card play for the parties),” Erin Ryan, a professor at Florida State University College of Law, told POWER.

The order to hear the case en banc by its own initiative – that is, without a request from either party – is rare.

According to John King, a partner with Louisiana-based law firm Breazeale, Sachse & Wilson, the order may do little to resolve uncertainty surrounding the rule’s legal hurdles. “I do not know what this portends for the outcome but it likely shortens the period of time before it gets to the Supreme Court,” said King.

The decision may have also been made by the court in order to diffuse some of the political tension in the case. Under the new schedule, a decision from the D.C. Circuit Court is not expected before the end of this year, meaning the Supreme Court will not hear the appeal before the fall of 2017. The altered schedule means most of the process will now take place after the 2016 presidential election.

“If the decision came down before the election, whichever side is unhappy about the result may be mobilized to vote in greater numbers, knowing that the new president will appoint the ninth member of the Supreme Court that will ultimately decide the issue,” said Ryan. “It’s possible that this move will chill potential political use of the case – but given how controversial it is, probably not by very much.”

Clean Power Plan decision could mean a 25% difference in long-term CO2 emissions – EIA

Wednesday, the EIA released a summary of expected CO2 emissions in a reference case, which assumed the Clean Power Plan passed and implemented the mass-based control option as opposed to a rate-based option, and a case which forecasted emissions without the plan. Based on the information from the EIA’s model, CO2 emissions in 2030 and beyond could be 25% higher without the Clean Power Plan.

Clean Power Plan effects

In the reference case, power-sector emissions are projected to be 28% lower than 2005 levels in 2022, when the standards are scheduled to begin. Final targets take effect in 2030 and remain constant thereafter, and the corresponding reduction in CO2 emissions compared with 2005 levels is about 35% from 2030-2040. In the case without the Clean Power Plan, power-sector CO2 emissions are 7% higher than in the reference case in 2022, and 25% higher in 2030 and beyond, but levels still remain below the levels measured in 2005.

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