The D.C. Circuit has issued an order setting the “lineup” for the September 27 oral argument on challenges to the Clean Power Plan.* The argument, which is scheduled to be held before the full court, will be divided into five segments. The court’s order implicitly acknowledges that the briefing format does not cover all of the issues raised by the numerous parties, but states that the exclusion of an issue from the argument “should not be construed as an indication of the merit” of that issue.
The total scheduled oral argument time (218 minutes) is much shorter than the petitioners’ proposed 2-day schedule, though it is half an hour longer than what EPA had proposed. The argument segment are as follows:
Segment 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.
| For State Petitioners: Elbert Lin, Solicitor General of the State of West Virginia For Non-State Petitioners: Peter D. Keisler, Sidley Austin LLP |
35 minutes total |
| For Respondent EPA: Eric Hostetler, U.S. Department of Justice | 25 minutes |
| For State Intervenors in support of EPA: Michael Myers, Assistant Attorney General of the State of New York For Power Company Intervenors in support of EPA: Kevin Poloncarz, Paul Hastings LLP |
10 minutes |
Segment 2: Issues related to whether Section 112 of the Clean Air Act bars regulation of carbon dioxide under Section 111(d).
| For State Petitioners: Elbert Lin For Non-State Petitioners: Allison Wood, Hunton Williams LLP |
22 minutes total |
| For Respondent EPA: Amanda Berman, U.S. Department of Justice | 17 minutes total |
| For Environmental Intervenors in support of EPA: Sean Donahue, Donahue & Goldberg LLP |
5 minutes |
Segment 3: Constitutional issues including whether the CPP violates the Tenth Amendment.
| For State Petitioners: David B. Rivkin, Jr., Baker & Hostetler LLP, counsel for the State of Oklahoma For Non-State Petitioners: Laurence H. Tribe, Professor, Harvard Law School, counsel for Dixon Bros. Inc., et al. |
12 minutes total |
| For Respondent EPA: Amanda Berman | 7 minutes |
| For State Intervenors in support of EPA: Michael Myers | 5 minutes |
Segment 4: Issues related to whether the CPP was properly noticed.
| For State Petitioners: Matthew H. Frederick, Deputy Solicitor General of the State of Texas For Non-State Petitioners: Thomas A. Lorenzen, Crowell & Moring LLP |
10 minutes total |
| For Respondent EPA: Chloe Kolman, U.S. Department of Justice | 10 minutes |
Segment 5: Records-based issues not submitted on briefs (Petitioners’ Opening Brief II, IV.C-d, V.A, D).
| For State Petitioners: Misha Tseytlin, Solicitor General of the State of Wisconsin For Non-State Petitioners: F. William Brownell, Hunton & Williams LLP |
30 minutes total |
| For Respondent EPA: Norman Rave, U.S. Department of Justice (addressing individual plant achievability analyses, interstate trading programs, grid reliability and infrastructure issues, and the state-specific issues raised by Wisconsin and Utah) Brian Lynk, U.S. Department of Justice (addressing arguments concerning the achievability of Building Blocks 1, 2 and 3, and EPA consideration of costs |
25 minutes total |
| For Power Company Intervenors in support of EPA: Kevin Poloncarz |
5 minutes total |
* Neither Chief Judge Garland (who is not participating in cases or matters while his Supreme Court nomination is pending) nor Circuit Judge Pillard participated in the matter.
