The Department of Energy has asked the United States Court of Appeals for the District of Columbia Circuit to reconsider its September 2026 decision vacating DOE’s first emergency order preventing Michigan’s J.H. Campbell coal-fired power plant from retiring.
DOE is seeking either rehearing by the original three-judge panel or rehearing en banc by the court’s active judges.
The U.S. Court of Appeals for the District of Columbia Circuit on Sept. 11 vacated the DOE’s order requiring Consumers Energy's J.H. Campbell coal-fired power plant in Michigan to remain in operation beyond its planned retirement date.
The court concluded that DOE exceeded its authority under section 202(c) of the Federal Power Act, which grants the agency limited emergency powers to address immediate threats to electricity supply.
In a unanimous decision, the court rejected DOE's argument that its emergency authority could be used to preserve generation resources based on broader reliability concerns.
DOE argues that the September decision improperly limited its emergency authority under section 202(c) of the FPA by allowing only last-resort action when states, utilities, and regional grid operators cannot or will not address a reliability risk in time.
DOE contends that Congress imposed no such prerequisite and that immediate action was necessary because Campbell’s impending retirement would eliminate generating capacity that could not easily be restored.
Both forms of rehearing are discretionary. DOE argues that the scope of its emergency authority presents a question of “exceptional importance” warranting reconsideration. Panel rehearing would allow the original three judges to revisit their decision; rehearing en banc would bring the case before the full court’s active judges.
APPA noted that the request does not change the distinction between the order the panel reviewed and the later orders keeping Campbell open.
The panel vacated only DOE’s first Campbell order, which expired in August 2025.
DOE has since issued successive orders, and the current order requires Campbell to remain available through November 14, 2026. The D.C. Circuit has not yet reviewed those subsequent orders.
