En Banc Review of the Clean Power Plan — What the Court Order Means, and Doesn’t Mean

The litigation over the historic Clean Power Plan will now be heard on the merits by the full complement of active judges on our nation’s second highest court.

Last week the U.S. Court of Appeals for the D.C. Circuit issued an order providing for litigation about the Clean Power Plan to be reviewed en banc by the active members of the court. A three-judge panel of the D.C. Circuit was originally assigned to hear the case.

The order also rescheduled oral argument to September 27 of this year (the three-judge panel had originally planned to hear the case on June 2).

The Clean Power Plan sets the nation’s first standards to reduce harmful, climate-destabilizing carbon pollution from existing power plants. At stake in this litigation are critical protections for climate and public health – clean air standards that will save thousands of lives per year, leave our children with a safer and healthier climate, reduce energy bills for businesses and families, and create new economic opportunities as the nation transitions to cleaner sources of energy.

What the Court Order Means – and Doesn’t Mean

• The order will streamline the court’s review of the legal challenges. The parties to the litigation would likely have asked the full court to review the case after issuance of the three judge panel’s decision ­– even without this new order. By proceeding directly to full court review of the Clean Power Plan and bypassing review by the three-judge panel, this new order avoids the need for a second round of briefing and oral argument. The court’s order enables the court to resolve the legal challenges to the Clean Power Plan in a more expeditious manner that may speed final resolution of the case.
• En banc review is rare but not unusual major cases. En banc review of major cases is not unusual in the D.C. Circuit, and in recent years the full court has granted en banc review an average of once per year. It is rare, but also not unprecedented, for the full court to review a case on its own initiative and without any party having requested it.
• The order has no bearing on how the court views the merits of the case. Although the order was not accompanied by an explanation, it likely reflects the court’s recognition that this case raises issues of great importance that warrant the consideration of all of the active judges. As noted above, the court may also have concluded that it would be more efficient to proceed directly to en banc review due to the likelihood that the court would eventually receive requests for such review. However, in spite of rampant speculation, the order does not signal how the judges will rule.
• The order allows for consideration by all of the court’s active judges. Chief Judge Merrick Garland and Judge Cornelia Pillard recused themselves from the order. If both judges remain recused, the en banc panel will be comprised of the remaining nine active judges. However, the order does not prevent Chief Judge Garland and Judge Pillard from joining the oral argument on September 27 if there is a change in circumstances.

The Current Status of the Case

The Clean Power Plan’s flexible, common-sense approach to reducing harmful pollution has drawn nationwide support.

• A broad and diverse coalition is defending the Clean Power Plan in Court. States, communities, businesses, and citizens across our nation recognize the urgent need to reduce climate pollution, and have stepped up to defend the Clean Power in court. The coalition includes: eighteen states; six municipalities and the District of Columbia; large power companies that own or operate almost ten percent of the nation’s generating capacity; trade associations representing thousands of companies in America’s $200 billion advanced energy industry; and numerous public health and environmental groups, including EDF and the American Lung Association.
• Hundreds of additional organizations, businesses, and leaders across America have filed amicus, or “friend of the court,” briefs supporting the Clean Power Plan. They include: Amazon, Apple, Google, Microsoft, Ikea, Mars Inc., Adobe, and Blue Cross/Blue Shield of Massachusetts; 54 cities, counties and mayors whose constituents are experiencing the impacts of climate change firsthand; Consumers Union and other ratepayer and consumer organizations; 193 current Members of Congress; national security experts including former Secretary of State Madeleine Albright and former Secretary of Defense Leon Panetta; two former Republican EPA Administrators who served under Presidents Reagan, George H.W. Bush, and Nixon; a broad cross-section of religious and small business organizations; leading health and medical associations; former state officials, including energy and environmental regulators from many of the states challenging the Clean Power Plan; and many of the nation’s leading experts on the electric grid, the Clean Air Act, and climate science.

Citizens and Businesses Across America Support the Clean Power Plan

The usual opponents of climate and clean air protections, including the coal industry, major polluters and allied attorneys general, have been waging a massive litigation campaign to stop The Clean Power Plan. The lawsuits against it began before the Environmental Protection Agency (EPA) even finished writing it. Among those opponents is a group of attorneys general – but they are not representative of the views of many of their own citizens, much less those of Americans at large.

• In the states whose attorneys general are challenging the Clean Power Plan, sixty-one percent of residents support these vital standards. Nationwide, even larger majorities recognize the urgency of addressing climate change and reducing carbon pollution from existing power plants.
• There are numerous cities defending the Clean Power Plan – including Salt Lake City, Houston, Boise, Grand Rapids and Reno – that are located in states with Attorneys General attacking it.

Large parts of the nation’s business community also recognize that the Clean Power Plan will make the economy stronger by speeding the transition to affordable, cleaner energy sources – and by and protecting against the serious risks of uncontrolled climate change.

• In April, more than 100 of the nation’s most successful and admired businesses – including Adidas, DuPont, EBay, General Mills, Kellogg’s, Johnson & Johnson, Nestle, Nike, Starbucks, and Unilever – signed a powerful statement urging “swift implementation of the Clean Power Plan” and declaring that “failure to build a low carbon economy could put America’s prosperity at risk.”

A Cleaner Power Sector is Within Reach

The emission reduction targets in the Clean Power Plan build on current trends in the nation’s power sector, and are eminently achievable.

Just last week, an analysis by the Energy Information Administration found that power sector emissions in 2015 fell to 20 percent below 2005 levels — already two-thirds of the way towards the 2030 emission reduction goals of the Clean Power Plan —  thanks in large part to the plummeting cost of natural gas and renewables.

In 2016, renewable energy is expected to represent nearly two-thirds of the new electric generating capacity built in the United States, with the latest projections indicating as much as 100 gigawatts of new renewable capacity will be built before 2020.

Each week seems to bring news confirming that the Clean Power Plan targets are completely reasonable, and that states and power companies recognize that low-carbon energy is the future. Here are some examples:

• The state of Arkansas – which is litigating against the Clean Power Plan – announced last week that it has already met the 2030 emission targets in the standards by moving to cleaner and more affordable sources of energy.
• Xcel Energy recently announced plans to build Colorado’s largest wind farm, a 600 megawatt facility that will save hundreds of millions of dollars for Colorado consumers and utilize wind turbines manufactured in the state. EnergyWire reports that, “Georgia is on track to surpass an initial goal to reduce carbon emissions from its power sector, a state air official said at a January stakeholder meeting.”
• The Michigan Department of Environmental Quality says the state can comply with the federal Clean Power Plan to reduce carbon emissions without changing anything until at least 2025.
• Minnesota Governor Mark Dayton said, “We shouldn’t need a federal edict to understand how vital it is that we keep doing everything in our collective powers to reduce harmful greenhouse gas emissions, improve energy efficiency, and advance Minnesota’s clean energy economy.”
• Oklahoma’s two largest utilities, PSO and OG&E, both say they’re on a path to compliance with the Clean Power Plan by the 2030 deadline.
• SNL Energy reported last week that eight of the major power companies challenging the Clean Power Plan have significantly reduced their coal-fired generation and emissions in recent years. American Electric Power, for example, has reduced its carbon dioxide emissions by 39 percent since 2000, and Southern Company has reduced its carbon emissions to 20 percent below 2005 levels.

You can find a list of all the supporters of the Clean Power Plan in court, and all the briefs in the case, on our website.