This September Will be the Clean Power Plan’s Biggest Moment Yet

Earlier this year, the Supreme Court of the United States (the Supreme Court) issued a stay, or suspension of President Obama’s Clean Power Plan (CPP). The CPP is the result of the President’s efforts to address the effects of climate change by regulating greenhouse gas emissions from power plants. The CPP is a significant rule that has serious implications for environmental justice communities. It is well documented that low income and communities of color will bear the greatest burden of health and environmental impacts related to Climate Change. Although there is much opportunity to improve the CPP rule to create more equitable outcomes for environmental justice communities, it is still a start at addressing these issues which have such far reaching impacts. The stay and all other legal proceedings impact the legal standing and implementability of the CPP which directly impacts environmental justice and all other communities.

Under the CPP, the Environmental Protection Agency (EPA) is required to enforce certain rules, which are outlined in the Plan. There are some states who oppose the CPP and EPA’s powers under it. They believe that the stay means that EPA must halt all activity related to the CPP and the state’s implementation of it, and that the rule has no legal effect during the stay. Then there are those states which believe that a stay is not as strong as an injunction–which most certainly halts activities if so ordered by a court – and that EPA may proceed with activities under the CPP. The majority of cases in opposition to the CPP argue that EPA overreached when it finalized its carbon rule to regulate greenhouse gas emissions under the Clean Air Act.

The DC Circuit Court of Appeals (COA) was scheduled to hear arguments on the CPP in June 2016, as a 3-judge panel. However, the DC COA recently decided to hear the case later–in September–and the entire Court will be present.

I spent almost three years as a judicial law clerk in the COA for the Third Circuit in New Jersey. Although I worked in the Third Circuit, my COA experience is enough for me to proffer a theory about why the DC COA has decided to hear the Clean Power Plan case “en banc.” En banc is a French term which means “in bench”–the entire bench rather than a panel of three judges will hear a case. (Normally, a panel of three judges hear a case if it is deemed to have significant merit. That does not mean that cases that are not heard by the panel are meritless–it just means that some cases that are not argued before a panel may involve a less complicated–not less important–issue. Sometimes, cases argued en banc are so significant that they ‘set precedents’ in law.) This means that cases with a ‘precedential opinion’ set rules of law that are followed by that court and sometimes other jurisdictions in similar cases.

As was true with the COA for the Third Circuit, in the DC COA, cases are usually distributed randomly to a 3-judge panel for review and decision. Whenever my COA decided to hear a case en banc, it was a very big deal. It meant that all of the law clerks in chambers were attending the sitting, and it meant that a precedential opinion could result from the bench decision on that issue.

As to the question of why the DC COA decided to hear the CPP case en banc, it is complicated and depends a great deal on the mechanisms of the DC Circuit. It could be that the Court believes that the issues of the CPP are complex or precedent setting, or so contentious that the full Court should hear and speak on the issue. It could be that the Court feels that the case is of sufficient merit to be ultimately heard by the Supreme Court, although an en banc hearing does not automatically lead to a hearing before the Supreme Court.

I believe that the case is very important and of such great environmental and public health significance that the entire DC COA needs to weigh in and analyze the issues and offer opinions. It addresses the much bigger question–how much power does the Environmental Protection Agency really have? The power and authority of the EPA to enforce the CPP and other environmental regulations will surely impact the health and wellbeing of environmental justice communities.

The Supreme Court is normally composed of 9 judges, but with the recent death of Justice Scalia, some people expect that the Court would be divided evenly on this issue. Aside from the 4-4 split in the Supreme Court, which some believe may prevent the Supremes from deciding this issue, and aside from a state’s possible reluctance to adhere to the guidelines in the CPP, while I hesitantly hazard a guess about the collective reasons for an en banc hearing of the CPP, I can most assuredly say that I plan to be in Court on September 27, 2016 when the en banc hearing occurs.

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