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What We Learned from the Clean Power Plan's Day in Court

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Last Tuesday, the Clean Power Plan (CPP) finally got its day in court with an en banc hearing before all the active judges on the D.C. Circuit Court.

After seven hours of debate, outside analysts have put early bets on the Environmental Protection Agency (EPA) winning this stage of the litigation process, cautiously noting that both the Court's political makeup — six judges appointed by Democrats, four appointed by Republicans — and the judges' lines of questioning indicate an advantage for the Agency. 

The briefs filed by the respective sides in the case covered a wide variety of issues, but for oral arguments, the Court limited the questions to a few basic elements like 1) whether the EPA can regulate “outside the fence-line,” 2) whether the CPP threatens reliability, 3) whether the rule is a federal commandeering of state authority, and 4) whether the EPA is restricted from regulating carbon emissions from existing power plants under Section 111(d) because it regulates other emissions from those plants under Section 112. 

Much of the Q&A, surprisingly, was spent on the following question, which unlike the four questions above has not been discussed much in the public dialogue around the Clean Power Plan:

Is the Clean Power Plan a transformational regulation that should require the direction of the U.S. Congress?

The judges spent a lot of time on this question debating whether they should apply a standard from the Supreme Court's Utility Air Regulatory Group v. EPA case. In the 2014 ruling, the court held that EPA could not exercise major, industry-transforming power without a clear statement from Congress on the issue. As Congress increasingly fails to legislate on major issues, the executive branch has been looking to existing statutes for the authority to address problems. As such, courts around the country continue to debate whether to provide the traditional broad deference to agencies as they pursue these initiatives, or whether “major” political issues require more scrutiny. It was clear Tuesday that the Court collectively was struggling to apply the "major question" doctrine without rendering meaningless the 2007 Supreme Court case that upheld EPA's authority to regulate carbon. 

What’s Next?

A decision from the D.C. Circuit could come by the end of the year, but may spill into the early part of next year. Assuming that the losing side will seek review by the Supreme Court, a quick decision could enable the high court to take up the case in October of 2017, whereas a slower decision may push the case back into early 2018. Either way, the Supreme Court would probably issue its decision at the end of that term, in June or July of 2018.

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