No opinions out of the D.C. Circuit last week, on administrative law or otherwise. The Court was busy hearing arguments. One in particular caught my eye (ear?), not least because it was argued by my excellent former co-clerk, Robert Stander.

Michigan v. Department of Energy concerns the authority of the Secretary of Energy to order a power plant to continue operating. J.H. Campbell, a coal-fired plant in Michigan, was slated for retirement in May 2025. Shortly before the scheduled shutdown, the Secretary issued an order under Section 202(c) of the Federal Power Act, ordering it to continue generating electricity.

Section 202(c) gives the Secretary, whenever he “determines that an emergency exists,” “authority . . . to require by order . . . such generation . . . of electric energy as in [his] judgment will best meet the emergency and serve the public interest.” Section 202(c) orders are limited to 90 days, though they may be renewed. Oral argument focused on what qualifies as an “emergency” within the meaning of the Federal Power Act.

The Government argued that an emergency exists because the Midwest region, which Campbell serves, is facing an increased risk of energy shortages, as demand grows (due to data centers, electric vehicles, and increased manufacturing), and “dispatchable power” (e.g., fossil fuels) is replaced by “variable, intermittent, renewable generation” (e.g., wind and solar). A case in point, Campbell’s retirement appeared likely to result in a net loss of capacity, even as regional demand grew.

Petitioners, including the State of Michigan, argue that this conception of “emergency” stretches the “ordinary spatial and temporal limits” of the concept. They argue that “emergency” refers to “sudden, unexpected, imminent conditions requiring an immediate response.” The Secretary’s concerns, however valid, are better addressed through long-range planning, which is the responsibility of other regulators.

The case thus raises an interesting question about what qualifies as an “emergency” in an industry where intricate infrastructure and cumbersome red tape mean reactions can move in slow motion. On the one hand, the Government acknowledges that it is reacting to a mere probability of a shortage. On the other, the Government insists that it should not have to wait for the blackouts to start rolling before it responds. Such a response would come too late to make use of Campbell’s capacity.

The panel pressed both sides on the definition of “emergency” and seemed less concerned with the question whether the evidence supports the Secretary’s conclusions with respect to Campbell. At multiple points, the judges alluded to broader stakes. The Trump Administration has declared a national energy emergency that could support similar orders around the country.

All of which leads to a puzzling procedural question: what is this appeal really about?  Technically, it is about the order the Secretary issued in May 2025. That order expired 90 days later, in August 2025. Both sides have urged the court to take the case up under the doctrine of “capable of repetition, yet evading review.” This doctrine allows the court to decide cases that have become “moot”—here, because the order is no longer in effect—if the same issue is likely to come up again and again without the interested parties having a meaningful opportunity to obtain judicial review—here, because of the 90-day limit.

The Secretary has issued three more 202(c) orders to keep Campbell running, but the petition for review argued last week only brings the original order before the Court. Once the Court decides this petition, it will presumably grant or deny petitions to review the other orders, and the Secretary will act in accordance with its decision going forward.

But the procedural posture interacts strangely with another recurring issue we’ve discussed on this blog before: remand without vacatur. The Government has requested it here. If the Court concludes that no emergency exists on this record, the Government asks the Court to leave the order in place while the Department conducts further factfinding in support of the order. Only, there is no operational order for the court to not vacate. Really, what the Government wants is for the Court not to “set aside” a different order, which may or may not yet be before the Courtin a different case, on the force of its decision here.

Of course, the Court may well conclude that an emergency exists. If it does not, however, it will be interesting to see what the Court has to say about vacatur.