How Will the Passing of Justice Scalia Impact the Supreme Court’s Review of the EPA Clean Power Plan Case?

February.17.2016

Last week, we wrote about the Supreme Court's unprecedented issuance of a stay prohibiting the implementation of the "Clean Power Plan" while a judicial challenge to the Plan is pending. The extraordinary stay decision garnered five votes—those of the Chief Justice, and Justices Scalia, Kennedy, Thomas, and Alito—and signaled that these five Justices believed that the challenge to the Plan had at least a "fair prospect" of success. On the night of February 12, 2016, just two days after the stay was issued, Justice Scalia passed away. Justice Scalia's death raises many questions about the future course of the litigation and the ultimate disposition of the Clean Power Plan.

The Clean Power Plan is a regulation aimed at reducing greenhouse gas emissions from power plants that was issued in final form by the U.S. Environmental Protection Agency on October 23, 2015. The regulation was promptly challenged by many parties, including industry, trade associations and representatives of a large number of states. The challenge is currently pending before a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit. Under the D.C. Circuit's expedited schedule, oral arguments are scheduled for June 2, 2016 and a decision from the panel could be issued as early as the fall of 2016.

Last week, the Supreme Court stayed the implementation of the Clean Power Plan until the Supreme Court itself either declines to review the Plan (i.e., denies a "petition for certiorari") or reviews the rule and issues a decision on the merits of the dispute. This update addresses how a vacant seat or new Justice could affect the Supreme Court's handling of the case.

Authors

Robert F. Lawrence Senior Counsel, Energy & Infrastructure, Energy

Washington, D.C.

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D:+1 202 339 8430
E: [email protected]

Practice:

Energy & Infrastructure Sector
Energy & Infrastructure
Energy
Infrastructure
Environmental, Social & Corporate Governance (ESG)

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Robert F. Lawrence Senior Counsel

Washington, D.C.

Bob's career covers project financing of electricity generation facilities and major infrastructure projects, including all types of conventional energy facilities and an expansive array of renewable technologies. He has closed financings for real estate development, construction and energy projects in all 50 states. In addition, he focuses on permitting, diligence and negotiation of transactions involving environmental attributes, such as emission reduction credits, carbon reduction credits and the generation and trading of regulated and voluntary environmental credits (acid rain and GHG cap and trade allowances, ERCs, LCFS credits, RINs, CAFE credits and voluntary emission reduction credits).

He has represented project sponsors, lenders and investors in connection with all aspects of conventional energy development and use, as well as solar, wind, biomass, waste-to-energy and other renewable technologies. He is adept on siting, land use, permitting, federal and state environmental review, cultural resources, endangered species and other environmental regulatory aspects of development of greenfield sites. In addition, Bob's practice covers all aspects of management and reuse of contaminated property, including demolition of industrial facilities, redevelopment of brownfield sites, remediation of contamination and habitat restoration.

Bob has represented major companies in connection with all aspects of environmental regulation, including permitting, chemical manufacturing and importation and vehicle efficiency. He has represented companies before regulatory agencies in rulemaking proceedings, permit applications and appeals and enforcement actions.

Bob leads Orrick's environmental due diligence teams and serves as Orrick's lead on transactional negotiations involving environmentally regulated facilities and operations, including cross-border transactions involving dozens of foreign jurisdictions.

Robert Loeb Partner, Supreme Court & Appellate, Bankruptcy Litigation

Washington, D.C.

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D:+1 202 339 8475
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Practice:

Finance Sector
Supreme Court & Appellate
Bankruptcy Litigation
Complex Litigation & Dispute Resolution
Energy
Litigation & IP
White Collar, Investigations, Securities Litigation & Compliance

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Robert Loeb Partner

Washington, D.C.

The breadth and depth of Bob's appellate experience, and his consistent track record of success in high-stakes matters, are why clients, including top tech and energy companies, trust him with their most important cases.

The National Law Journal’s Litigator of the Week column recently recognized Bob’s appellate major wins in energy and product liability cases for Broadreach Power and Johnson & Johnson. Bob’s recent victories also include Fifth Circuit wins for energy clients Cheniere and Eni. In the Cheniere-Midship case, Bob obtained an emergency stay from the court of appeals of the regulating agency proceedings and, then after oral argument, achieved a full victory. And for Eni, Bob convinced the Fifth Circuit to vacate a $300M judgment against Eni in a dispute with another energy company. These types of big wins in the most challenging cases show why both Chambers and Legal 500 rank Bob among the Country’s top appellate advocates.

Bob has argued before the Supreme Court multiple times (including a 9-0 victory regarding application of the Fourth Amendment to rental cars), and has filed hundreds of briefs in the Supreme Court. He has also handled cases in highest state courts in California, New York, Maine, Kentucky and New Jersey.

Before joining Orrick, Bob served as one of the leaders of an elite appellate group at the Department of Justice. There, in addition to major national security, commercial, and administrative law, Bob supervised bankruptcy appeals. At Orrick, Bob has continued to handle big ticket bankruptcy matters, such as a billion-dollar dispute over whether DHL’s claim was discharged by United’s bankruptcy, appeals from the City of Stockton bankruptcy confirmation, and a Ninth Circuit matter involving the interplay of the Takings Clause and bankruptcy law.

Bob’s recent work includes matters for Johnson & Johnson, Avon, Microsoft, Eni, Cheniere Energy, Freeport LNG, Broadreach Power, LS Power, Exxon, Medidata, Renco, MSC Cruise Line, Golden 1 Credit Union, Credit Suisse, TravelCenters of America, Gannett, and the City of Stockton.

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