Surprise move by the DC Circuit Court of Appeals in the clean power plan litigation

The DC Circuit Court surprised everyone Monday by rescheduling Clean Power Plan oral arguments to September 27, 2016 before the court's full panel of judges. Although this delays the date when the case will be heard by the court, it removes the possibility of an appeal from the prior three-judge panel to the full panel of DC Circuit Court judges as a possible interim step before likely being heard by the US Supreme Court.

The case had been set to be heard on June 2 in front of three of the DC Circuit Court's judges. Monday's order took everyone off guard, since it was done on the court's own motion. The order resetting the date to hear oral arguments also shifted the case from the panel of three judges to the full panel of judges. Interestingly, Chief Judge Garland and Judge Pillard did not participate in the order. The order lacks any explanation or further detail. Chief Judge Garland has been nominated by President Obama to fill the vacant seat on the US Supreme Court and has withdrawn from many normal duties, but it is not clear why Judge Pillard, who was appointed to the DC Circuit Court by President Obama, did not participate in the order.

Given the current schedule, a decision from the DC Circuit Court now appears more likely in 2017 after President Obama leaves office. This timing may also alleviate concerns that the US Supreme Court could fail to resolve the case. Former Justice Scalia provided the deciding vote when the US Supreme Court split 5-4 to issue the stay of the Clean Power Plan. The DC Circuit Court's decision would stand in the event of a US Supreme Court 4-4 split, and the delay in the case schedule could now give the next president time to get the US Supreme Court vacancy filled.

Monday's order delaying the court proceedings may also prompt more efforts to discourage those states still proceeding with some level of Clean Power Plan planning from continuing that work and calls for EPA to stop assisting those states and from taking any other actions relating to the Clean Power Plan before the case is decided.