Opponents of the Obama administration’s landmark climate change rule will have to wait three more months to argue their case in federal court.
The Court of Appeals for the District of Columbia Circuit said Monday that oral arguments in the case over the Clean Power Plan will be held Sept. 27, rather than June 2, when they were originally scheduled earlier this year.
Additionally, the case will be heard by a full panel of nine of the court’s judges. Chief Judge Merrick Garland, whom President Obama has nominated to sit on the Supreme Court, has recused himself from all cases, and Judge Nina Pillard also elected to sit out of the “en banc” case.
The decision to delay the case and expand the panel was made by the court on its own and not in response to a request from any particulate litigant. The court did not explain why it made the decision.
It will likely push back the entire litigation process for a case with dozens of participants that is nearly certain to be appealed to the Supreme Court after the D.C. Circuit’s decision.
Before appealing to the Supreme Court, litigants would have to appeal to the full “en banc” panel of the circuit court, a step that is now precluded.
But by delaying the hearing, the court could also speed up the entire litigation process, since it precludes any parties from appealing a ruling to the court’s full panel of judges.
The Supreme Court halted the regulation earlier this year and said it cannot be enforced until all the litigation is complete. If the Senate does not confirm Garland or another ninth Supreme Court justice and the court’s eight justices remain, it could easily reach a 4-4 tie when the case reaches the high court, in which case the circuit court’s decision would stand.
In the case, West Virginia, along with numerous additional states, energy companies, business interests and others argue that the Environmental Protection Agency is violating the Clean Air Act with last year's limits on carbon dioxide emissions from the power sector.