The Clean Power Plan lawsuits are coming. The Environmental Protection Agency (EPA), the states, and industry are hunkering down for the new rule’s journey through the federal court system. How long will this take? What will the process look like? Here’s our educated guess about the Clean Power Plan’s upcoming litigation dance card.
The Premature Challenge – June 2015
In an uncommon move, Murray Energy, the state of West Virginia, and a few other states filed suit against the proposed Clean Power Plan rule in 2014. The D.C. Circuit dismissed the case in June 2015, on grounds that the rule was not yet final. This is a procedural dismissal, and one concurring judge suggests the EPA might have lost if the court had gotten to the merits.
Meanwhile Back at the Ranch – August 2015
EPA publically released the Clean Power Plan final rule on August 4, 2015 and, along with it, a 152 page memorandum defending its legal position. Almost immediately, the same coalition of early challengers asked the court for a rehearing with the previous panel in light of the forthcoming final rule. If the identical panel of judges — Kavanaugh, Griffith, and Henderson — does rehear the case, this matters, and a lot. This panel is considered historically sympathetic to parties alleging EPA overreach. The challenging parties also asked for an en banc rehearing and a stay, but I will address those later.
I Know What You’ll Do Late Summer 2015
EPA still has not published the rule in the Federal Register, but this will happen any day given the agency has already released the rule to the public. Opponents will have 60 days from the date of publication to file a challenge in the D.C. Circuit. Expect some litigants to file the day the rule is published or shortly thereafter. After the lawsuits are filed, the D.C. Circuit will assign a panel – unless rule opponents get lucky and the original panel re-hears the old case and consolidates it with challenges to the final rule.
All They Have to Do Is Stay – Fall 2015
While a stay in implementation is the dream of all Clean Power Plan opponents, it is a tall order: opponents must show not only irreparable harm, but a likelihood of success on the merits. It would be peculiar for the D.C. Circuit to grant a stay, but the Supreme Court’s recent smackdown of the very expensive Mercury Air Toxics Standard (MATS) bolsters the hopes of some CPP detractors.
If the court doesn’t grant a stay, then EPA, the states, and industry will continue to work on implementing the rule while the courts sort out its legality.
Expect the stay motions and briefing to take six months or more.
Down to Brass Tacks – Anticipated Spring 2016
Once the issue of a stay is settled, the parties will brief the substantive issues – the constitutional and statutory authority. After this, oral arguments will be scheduled. This could take another six months to a year, unless the court expedites the case. By that point, the first deadline for states to comply under the final rule — September 2016 — will likely have passed.
Rehearing? – Good Question!
Finally, an opinion – but not so fast. Parties will have the option of asking for either a panel rehearing or an en banc review (which would involve all of the judges on the D.C. Circuit versus the intial panel of three judges). In a major litigation battle over a critical sector of the economy, count on it. The only wrinkle is if the Murray Energy coalition gets either a rehearing or en banc review of its earlier case – then they will have already had a rehearing, and we don’t get to dance that jig twice. If there is a rehearing, this will easily add another six months to our litigation two-step.
The Supremes – Sometime in 2018 or 2019
After the D.C. Circuit issues its final opinion, the losing litigants can ask the Supreme Court to review it, and the Court would be expected to take the case. This will lead to another lengthy briefing process. At long last, in late 2018, the parties will be sitting in the Supreme Court of the United States hearing oral arguments. Then they will wait, perhaps months, for the court to have the last say. We can expect a decision sometime in early 2019.
Like a Bad Penny. . .It’s a Never Ending Story
Depending on the Supreme Court’s decision, the lawyers may continue to rack up impressive legal fees for a long time after our nation’s highest court renders its opinion. In these cases sometimes the rule is remanded to the D.C. Circuit for further proceedings consistent with the court’s opinion. Then, also depending on what the Supreme Court had to say, the D.C. Circuit may take things up again or remand the rule back to EPA.
If the Supreme Court thinks EPA egregiously overstepped its bounds and chucks the entire rule, EPA will need to start over. Depending on the politics of the next presidential administration, this will mean either a new proposed rule or a lawsuit from the environmental left, pushing the agency to take action on the basis of the underlying endangerment finding.
Sarah E. Hunt is Director, Center for Innovation and Technology at ALEC. She leads the Center’s Energy Innovation Project. Her policy work focuses on free-market solutions for the energy future.