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On this coming Tuesday morning, September 27, ten judges of the United States Court of Appeals for the District of Columbia will hear legal argument on the challenges of 27 states to the validity of the Obama Administration’s Clean Power Plan (CPP).  It had been anticipated that all 11 judges of the Court would hear this long-awaited and highly-anticipated legal argument, but Chief Judge Merrick Garland, President Obama’s nominee for the current U.S. Supreme Court vacancy, has recused himself from the hearing.

The 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.

Led by the West Virginia Attorney General’s Office, 27 states are challenging the CPP.  On the other side of the courtroom, the U.S. Environmental Protection Agency will be defending the legality of the CPP, with the support of a coalition of 18 states, the cities of New York, Chicago and Washington, D.C., and various environmental and industry groups.

The oral argument will begin at 9:30 a.m. on Tuesday.  Typically, arguments in the D.C. Circuit run 20 to 40 minutes.  In a remarkable move, the Court has allotted 218 minutes (a little over 3-1/2 hours) for argument on the CPP, although the Court could decide on its own to extend that time.  A total of 16 lawyers are scheduled to appear to argue the pros and cons of the Plan.

Court observers do not expect a decision from the D.C. Circuit until after the November elections, although everyone’s crystal ball works equally well and no one knows for sure when the decision will come down.  Once the Court rules, the losing side will certainly ask the United States Supreme Court to take the case on appeal.  In the meantime, there will be a new administration in the White House by the time that this case reaches the Supreme Court.  Should Democrat Hillary Clinton be elected, she almost certainly will try to keep the CPP in place.  Republican nominee Donald Trump, on the other hand, has vowed to try to eliminate the CPP.

Next Tuesday will be a fascinating day in the unpredictable life of the Clean Power Plan.  Look for a report next week on the CPP’s day in court.

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Heather A. Scott

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