When the U.S. Court of Appeals for the D.C. Circuit holds its hearing Tuesday on the legal challenge of the EPA’s Clean Power Plan, all but one of the judges will be there.
Supreme Court nominee Merrick Garland will miss the en banc review of the regulatory plan that has been challenged by Oklahoma and 27 other states who contend it is illegal and “overreach” by the Obama administration.
The Washington Post reports the court issued a brief order on Thursday, indicating Judge Cornelia Pillard apparently no longer had a conflict and would not recuse herself. As a result, the case will be heard by 10 judges instead of nine.
The even number of judges means a split ruling of 5-5 would result in a win for the EPA on the legality and constitutionality of its plan. That’s because such a split vote would result in the judgment of the lower court being upheld without opinion.