Speculation that Justice Alito Will Recuse Himself from CSAPR Suit Grows

On December 10^th, the Supreme Court will hear oral arguments on the fate of CSAPR in EPA v. EME Homer City Generation, L.P. Although there has not yet been a formal announcement from the Court, it is widely speculated that Justice Alito will recuse himself from the case. Justice Alito did not participate in the Court’s October 7 or November 26 decisions on procedural motions in the case, suggesting he may not participate in oral argument either. Potential bases for recusal include his ownership of stock in Oklahoma Gas and Electric, which operates in CSAPR states, and the fact that his son clerked for Judge Kavanaugh, who wrote the majority opinion vacating CSAPR, while the case was pending.

Justice Alito’s recusal could benefit EPA, based on his track record in past environmental cases. However, a 4-4 decision down ideological lines would have the effect of upholding the D.C. Circuit’s vacatur of CSAPR. Given the detailed nature of the CSAPR issues before the Court, it is far from clear that the decision will follow ideological lines.

Yesterday, the Court expanded the time allotted for oral argument to 90 minutes. The Court is expected to issue its decision by June 2014.