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In the latest in a series of surprising and highly unusual legal developments, the U.S. Court of Appeals for the District of Columbia Circuit announced on May 16 that it would hear challenges to the Obama Administration’s Clean Power Plan sitting as the full Court of 11 judges — a practice known as sitting “en banc” — rather than as the three-judge panel that would have heard the challenge on an expedited basis under a Court ruling of last year.

The D.C. Circuit gave no reason or justification for this latest action, which is something of an about-face from the Court’s earlier procedural rulings.  Observers have also noted that the Court took this action on its own, and not on the suggestion of any of the parties or lawyers involved in the case.  The immediate effect of the ruling is to push oral argument in the case from June 2 until September 27, 2016.

The Clean Power Plan (CPP) is the centerpiece of President Obama’s strategy to curb carbon dioxide emissions from coal-fired power plants and to combat climate change. It is considered to be a significant part of what President Obama hopes will become his presidential legacy.  The litigation challenging the CPP was brought by a group of nearly 30, mostly coal-producing, states and several industry groups and advances the legal position that Congress never authorized the EPA to implement the kind of significant shift in the way electricity is generated in the United States that is envisioned by the Plan.  Despite the legal challenge and substantial opposition to the Plan, the CPP is not itself without significant support, with more than 20 states, as well as the District of Columbia and New York City, having voiced support for the Plan.

Court observers this week have speculated that the Court took this action because it believes that the issues involved in the case and the CPP itself are of such significance that they warranted the Court’s entire attention at the initial hearing.  While the immediate effect of the ruling is to delay the Court hearing for approximately three months, the ultimate outcome might be an acceleration of the U.S. Supreme Court’s review of the case, since the losing party before the three-judge panel would have undoubtedly asked for an en banc review anyway.

A ruling from the D.C. Circuit on the validity of the Plan is now not expected before 2017.

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Luis F. Ruiz

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