Divide in an Effort to Conquer: Petitioners ask Court to Bifurcate Challenge to Clean Power Plan

Some lawyers say there is no harm in piling on when adding causes of action to a law suit. Assuming the claims are defensible, this may be true. Opponents of the Environmental Protection Agency’s (“EPA” or “Agency”) Clean Power Plan (“Rule”), however, seem to believe that their suit chock-full of legal challenges may be hindering their efforts to receive an expeditious ruling.

Yesterday, the group of 27 states, utilities, trade groups and unions, filed a motion with the federal Court of Appeals for the District of Columbia Circuit requesting that the Court “bifurcate the briefing between the fundamental legal issues and individual record-based challenges.” In sum, the Petitioners ask the Court to first make a determination on whether EPA has the legal authority under Section 111(d) of the Clean Air Act to regulate greenhouse gas emissions and then—if and only if it is necessary—make a determination regarding the programmatic challenges to the Rule. Petitioners’ motion includes an “Expedited Briefing Schedule” that would require first briefs to be filed with the Court on January 29, 2016, and oral arguments would take place in May 2016. The central reasoning behind this request is that the Rule requires so much of Petitioners—development and approval a plan for “restructuring a state’s [entire] electric system”— that the sooner the Petitioners know the exercise is futile the better.

EPA would of course disagree with this characterization. The Agency also disagreed with Petitioners’ request for bifurcation and will undoubtedly file a response in opposition. Strategically speaking, the Agency likely benefits from a methodically-paced suit which allows the policies within the Rule to take effect and by doing so, undercuts the Petitioners’ argument that implementation would be impossible. See i.e., the Affordable Care Act.

Stay tuned to this Blog for future updates on litigation related to the Clean Power Plan.