Full Speed Ahead!

by Daniel Farber

December 13, 2010

Cross-posted from Legal Planet.

On Friday the D.C. Circuit rejected efforts to stay EPA’s pending greenhouse gas regulations until the court decides the merits of the appeals.  It could well take a year or more for the merits to be decided, so in the meantime EPA can move forward.

The court order does not indicate any view on the merits of the cases, but the court clearly rejected the doomsday scenario painted by industry and the state of Texas:

Petitioners have not satisfied the stringent standards required for a stay pending court review. See Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 32 (2010). Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are “certain,” rather than speculative, or that the “alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam).

The challengers did win a partial victory, however, because the court agreed to consolidate all of the various challenges before the same panel. However, consolidation will mean even longer delays as the three judges struggle with thousands of pages of briefs and records.

The Supreme Court could reverse the stay denial, but that seems highly unlikely given that the order was joined by two very conservative judges (Ginsburg and Brown).

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Daniel A. Farber is the Sho Sato Professor of Law, Director of the California Center for Environmental Law and Policy, and Chair, Energy & Resources Group, University of California, Berkeley.

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