The D.C. Circuit’s CPP oral arguments continued through yesterday afternoon with counsel addressing the final three argument segments: (1) constitutional issues, (2) notice issues, and (3) record-based issues not submitted on briefs. As was case in the morning session, the ten judges were actively involved in their questioning and showed little interest in holding the parties to the time limits set in its earlier order.
The constitutional issues were scheduled for just 24 minutes but lasted well over an hour. Judge Tatel repeatedly questioned challengers’ argument that the CPP entails unconstitutional federal commandeering of states, asking how the CPP is any different than the Americans with Disabilities Act, which requires states to use zoning and police powers to enforce federal mandates. The judges also pushed the CPP supporters to respond to the argument that ensuring reliable electricity is a core state function beyond EPA’s authority.
Compared to the other topics, the judges had fewer questions about the notice issues and let the parties speak uninterrupted for relatively long stretches of time. Many of the questions that were raised pertained to procedural requirements related to the numerous petitions for reconsideration still pending before EPA.
Finally, the court heard arguments on other record-based issues. Judge Kavanaugh jumped in early on both sides with questions challenging the CPP opponents’ claim that EPA’s emission-reduction targets are not achievable and with questions to CPP’s supporters as to whether there are avenues for people to bring legal challenges in the future if EPA’s predictions and estimates prove to be wrong. Other judges also raised questions about what will happen if certain states are simply unable to meet the CPP’s targets despite good faith efforts.