Court hears oral arguments in Clean Power Plan challenge

By Erin Voegele | September 28, 2016

On Sept. 27, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in a lawsuit challenging the U.S. EPA’s Clean Power Plan. The hearing, held before a panel of 10 judges, spanned nearly seven hours. Arguments largely focused on constitutional, statutory and procedural issues surrounding the CPP and its planned implementation.

The EPA published the final rule for the CPP in the Federal Register in October 2015. More than two dozen states and a variety of industry groups and businesses filed challenges against the program. A variety of groups have also signed on as interveners in support of the EPA.

On Jan. 21, the U.S. Court of Appeals for the District of Colombia denied a request for a stay that would have prevented the U.S. EPA from implementing the CPP until legal challenges are resolved. At that time, oral arguments were scheduled to be heard on June 2 before a three-judge panel. The court later delayed oral arguments until Sept. 28 and announced they would be heard in front of a full, 11-judge panel. Judge Merrick Garland, who is nominated to the Supreme Court, recently recused himself from the hearing, leaving the matter to a 10-judge panel.

Soon after the appeals court denied a request for a stay, the U.S. Supreme Court took action to delay enforcement of the CPP until legal challenges are resolved.  On Feb. 9, the court indicated the CPP regulation “is stayed pending disposition of the applicant’s petition for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicant’s petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the court denies the petition, this order shall terminate automatically. If the court grants the petition for a writ of certiorari, this order shall terminate when the court enters its judgement.” 

The exact role of biomass can play in meeting CPP requirements is still unclear. In November 2015, Janet McCabe, U.S. EPA acting assistant administrator for the Office of Air and Radiation, published a blog that addresses the potential role of biomass in the CPP.  In addition, the agency held a workshop on the role of biomass in the CPP in April. 

Audio recordings of the Aug. 27 oral arguments can be downloaded from the U.S. Court of Appeals for the D.C. Circuit website.