On Tuesday, the U.S. Court of Appeals for the D.C. Circuit issued a brief order rescheduling the originally planned June 2, 2016, oral arguments in EPA’s Clean Power Plan (CPP) litigation (West Virginia v. EPA) to September 27, 2016. The order also noted that arguments would be heard by the en banc (full) court of nine judges in contrast to the three-judge panel that had been assigned to the June 2 hearing.
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Elimination of a panel hearing and going straight to an en banc court is an unusual action that highlights the extraordinary national interest in the case, the CPP, and climate change in general. The administration’s powerful role at the Paris climate talks in December 2015 and the subsequent agreement resulted to a large extent on its relentless push to put the CPP in action against wave after wave of domestic counterattacks. The CPP is beyond question the signature climate action President Obama has taken in his entire tenure. It is now likely that the fate of that plan will not be known while the president still occupies the White House.