Gregory E. Wannier
Deputy Director
The DC Circuit issued an order on December 10 with respect to a group of cases challenging four EPA greenhouse gas regulations, responding to petitioners’ motions to coordinate cases, and to stay implementation of EPA’s regulations pending a final decision in the case. The panel, consisting of Judges Ginsburg, Tatel, and Brown, appears to have effectively granted petitioners’ requests that the (now three) separate challenges be heard together as coordinated cases. However, it explicitly denied petitioners’ motions for stay, allowing pending EPA regulations to move forward as planned on January 2, 2011.
As we have explained, the purpose of case coordination is to hear separate cases together. That is directly accomplished with the court’s order that the cases be “scheduled for oral argument on the same day before the same panel.” Case coordination is something that petitioners had requested and EPA had challenged; so in that respect the court’s order did contain a win for petitioners.
The court’s decision on the motions for stay was focused on the inability of petitioners to show that their harms are “certain,” or that they will “directly result from” EPA’s regulations. Both of these considerations are part of the second factor in the four-part showing requirement for a motion to stay: that of irreparable injury. In explaining its decision, the court relied specifically on Wisconsin Gas Co. v. FERC,[1] which involved similar conjectures about the effect of regulations on business activities (there in the context of mandatory minimum gasoline purchases for pipeline operators). Turning to the panel’s two justifications for denial, the first is relatively straightforward, and reflects the court’s skepticism of petitioners’ claims that any actual damage was in fact proven. The second focuses on the nature of petitioners’ predicted damages (even if they were proven); as the panel notes, in line with Wisconsin Gas, “mere economic loss”[2] cannot justify any motion to stay.
The court did not indicate its initial take on the merits of the case. It is similarly unclear whether the same panel will be hearing oral arguments: although the court directed that the cases be heard “before the same panel” they did not say specifically that the eventual panel would have the same make-up as the one that decided this motion. The previous motion on this line of cases (on November 16) was decided by Judges Henderson, Garland, and Brown – so thus far there is little to suggest that the DC Circuit has allotted these challenges to a particular set of judges.
[1] 758 F.2d 669 (1985).
[2] Id. A675.
