Responding to an unusual request from the Supreme Court, the parties in the complex set of cases challenging regulation of greenhouse gases agreed Tuesday to trim down the number and length of their briefs to reduce duplication.
Given the number of parties in the six consolidated cases, the challengers were entitled to file nine separate briefs on the merits at 15,000 words each, for a total of 135,000 words. But in a letter to the court clerk, the groups pledged to cut the total word count to 75,000, to be divided equally among five or six briefs.
The consolidation plan was filed just one week after the court granted review in the cases, which could have a major impact on the scope of the Obama administration's efforts to combat climate change. On the same day as the grant, the court in an email directed the parties to submit a plan to reduce briefing.
Peter Keisler of Sidley Austin wrote the letter to the court's new clerk, Scott Harris, on behalf of both sides -- the parties defending the regulations, as well as those challenging them. The letter stated that the Environmental Protection Agency, a group of states, and a coalition of environmental groups, would each write one brief, for a total of three on that side. Each group defends the decision below upholding EPA regulations, but each has "distinctive institutional perspectives," so there should not be "undue repetition," Keisler wrote.
But it is more complicated for the challengers, Keisler said in his letter. The various companies, trade associations, states and members of Congress have taken positions on the regulations and the Clean Air Act that are "in tension with others or even mutually inconsistent," making a joint brief difficult, according to Keisler. In addition, he said, some states are prohibited by statute or policy choice from joining briefs of private parties.
The streamlining proposed by the challengers, Keisler wrote, "will materially reduce the number and size of the briefs to be filed in support of the petitioners, and avoid the burden on the Court of confronting unnecessary repetition, while granting the petitioners the flexibility needed to ensure a full and fair presentation of all of the issues to the Court." Arguments in the consolidated cases, lasting one hour, will likely take place in February.
Lawyers involved in the litigation cautioned against concluding from the letter that Keisler is now the lead attorney or will necessarily argue the case. But in earlier coverage of the case, several lawyers predicted that the former Anthony Kennedy clerk would likely emerge as the advocate representing the challengers at the lectern.