If you are reading this, then you know that yesterday (January 21), the D.C. Circuit denied all of the requests to stay the Clean Power Plan. In its entirety, the relevant part of the Court’s order reads: “ORDERED that the motions for stay be denied. Petitioners have not satisfied the stringent requirements for a stay pending court review.” Unfortunately, we do not know whether the judges were unpersuaded by the arguments that the CPP is illegal, by the arguments about petitioners’ suffering irreparable injury from the CPP between now and a final decision on the merits, or both.
In any event, the CPP is not out of these particular woods yet. The petitioners have said they will appeal the stay denial to the Supreme Court. While it is unlikely that either the full Court (or Chief Justice Roberts in his capacity as “Circuit Justice” for the D.C. Circuit) would grant a stay, the possibility remains.
The three judges (Henderson, Rogers and Srinivasan) who decided the stay motion will retain jurisdiction over the case and decide the merits. Even without reading the stay denial tea leaves, this is a good panel for EPA. While Judge Henderson indicated her skepticism about the CPP in earlier litigation over the CPP (trying to stop EPA from even issuing it), Rogers and Srinivasan are among the judges inclined to defer to EPA’s interpretation of the Clean Air Act and the agency’s authority under it.
The panel also ordered expedited briefing and argument, with briefing to be finished by April 22. Things can go this fast because everyone has already briefed – to some extent — every issue twice: first, with those attempts to stop EPA from issuing the rule, and now, on the stay. It also set oral argument for 9:30 am on June 2, and “the parties should also reserve June 3 in the event argument cannot be concluded on June 2nd.” If six hours of argument doesn’t clarify things, we’re not sure another six will help matters, but at least no one will complain about not having their day(s) in court.
Finally, the expedited schedule also means we can expect the Supreme Court’s decision on the CPP in 2018, and possibly even late 2017, depending on how quickly the Circuit panel issues its decision.