On September 27, 2016, the U.S. Court of Appeals for the D.C. Circuit heard oral argument over the Obama Administration’s signature plan for addressing climate change: the Clean Power Plan, which relies on “generation shifting” to reduce power sector emissions 32 percent by 2030. In a highly unusual move, the court held the argument en banc—that is, before all active judges (except recusals).  Thus, with the recusal of Supreme Court nominee Judge Garland, the case was heard before a ten judge panel of Judges Henderson, Tatel, Rogers, Griffith, Kavanaugh, Brown, Srinivasan, Pillard, Millett, and Wilkins (4 Republican-appointed and 6 Democrat-appointed, four of whom were appointed by President Obama).

The argument was scheduled for 3 hours and 38 minutes, but Judge Henderson, chief for the panel, rarely held the advocates to their assigned schedule, allowing most advocates double or even triple the time allotted in the court’s scheduling order. As a result, the hearing continued all day, finally ending after 6 hours and 45 minutes of argument, which Judge Henderson herself described at the end as a “marathon.”

Although dozens of discrete issues were raised in the briefs submitted by the many parties to the case, the arguments were grouped into five general categories for the hearing: “Statutory Authority,” “Section 112,” “Constitutional Issues,” “Notice Issues,” and “Record-Based Issues.” Each category of issues was argued by at least two advocates for the petitioners—one representing the 28 State Petitioners and one representing the 150+ Industry Petitioners.  Respondent’s case was presented by one or two attorneys representing EPA, with support from advocates representing the State and Industry Intervenors.

The argument in the case drawing the most attention is the argument that EPA lacks authority to mandate emissions standards for fossil-fueled power plants that cannot be met using emissions-reduction technology installed “inside the fence” of the plant and instead requires plant closures and the construction of new renewable resources.  Petitioners argue that in cases like the Clean Power Plan, which have tremendous “economic and political significance” and involve a “transformative” expansion of agency power, the agency cannot proceed unless Congress gave it clear authority to do so.  Given that Section 111(d), is a short, rarely-used two-sentence provision that has never been used previously to require anything like the Clean Power Plan, the Petitioners hope the judges will invoke long standing “clear statement” Supreme Court precedent to overturn the rule.

A decision is not expected until early next year, due to the complexity of the case, but could come at anytime. Until then, and until any subsequent Supreme Court appeals are resolved, a Supreme Court stay freezing the rule will remain in place.