Interested observers arrived hours in advance (or paid line-standers) to get into the courtroom or one of several overflow rooms to watch today’s oral arguments before the D.C. Circuit on challenges to the Clean Power Plan. This morning the court tackled the first two argument segments listed in its order setting the “lineup” for oral arguments: (1) all issues related to EPA’s statutory authority, including generation shifting and state authority issues, except those related to Clean Air Act Section 112, and (2) issues related to whether Section 112 of the Clean Air Act bars regulation of carbon dioxide under Section 111(d).
The ten judges (Judge Merrick Garland, who is nominated to the Supreme Court, recused himself) were active in their questioning from the very beginning, and the court was almost immediately behind the time limits set in its earlier order. The judges were particularly interested in the first argument segment, which was scheduled for 70 minutes but lasted over two hours. Right off the bat, Judges Tatel and Griffith questioned challengers’ claim that the CPP was a “transformative” action aimed at creating a “new energy economy.” Conversely, Judge Kavanaugh seemed skeptical of the CPP defenders’ argument that this case was not so significant a development as to raise the Major Question Doctrine, under which the court would not defer to EPA’s interpretation of the Clean Air Act.
Argument segment two, on Section 111(d) of the Clean Air Act, was scheduled for 49 minutes but went nearly 90 minutes. Judge Pillar, who did not participate in earlier portions of this case, repeatedly questioned the logic behind the challenger’s interpretation, although the judges had pointed questions on both sides’ understanding of the 1990 amendments to the Clean Air Act.
We will keep you posted on the remaining portions of the oral argument.