EPA, Clean Power Plan ‘stand a chance’ with Garland

Source: Robin Bravender, E&E reporter • Posted: Thursday, March 17, 2016

Supreme Court nominee Merrick Garland isn’t a guaranteed vote for the Obama administration’s signature climate rule, but he’d be a lot more likely to uphold the rule than the late Justice Antonin Scalia.

That’s the consensus from legal experts today as they probe Garland’s record for clues about how he might deal with U.S. EPA’s Clean Power Plan and other big environmental issues if he’s confirmed to the high court.

James Rubin, a former Justice Department attorney now at the law firm Dorsey & Whitney, put it simply: EPA “probably would have lost with Scalia. With Garland, they stand a chance.”

A lawsuit over the rule to slash greenhouse gas emissions from power plants is still pending at the U.S. Court of Appeals for the District of Columbia Circuit, where Garland is chief judge. He hasn’t been involved in the challenges to the rule at that court, so presumably he wouldn’t recuse himself from the case if it reaches the high court, as is widely expected.

Case Western Reserve University School of Law professor Jonathan Adler said he wouldn’t call Garland a “sure vote” for the EPA in that case. “It’s a big case with lots of complicated issues, but he does have a record of being fairly deferential to the government,” he said.

If you’re EPA, Adler said, “you want a judge that you think will at least be, if not necessarily sympathetic, certainly open to upholding the government’s claims.”

Ann Carlson, a law professor at UCLA, wrote in a blog post today that Garland is “a good choice for environmental protection.”

Garland “is almost always deferential to agency interpretations of statutes, including environmental ones,” Carlson wrote. “When he had not deferred to the Environmental Protection Agency he has sided with environmentalists. And he has ruled in some significant cases that at least suggest he is likely to uphold the President’s signature climate initiative, the Clean Power Plan.”

Environmental lawyers point to Garland’s recent participation in a D.C. Circuit ruling to uphold the Obama administration’s rule to curb power plants’ toxic air pollution as evidence of how he would differ from Scalia.

Garland was in the majority on a three-judge D.C. Circuit panel voting to uphold the rule in 2014. The next year, Scalia penned the opinion finding the rule illegal.

It’s unclear how Garland’s nomination will affect pending cases he has already heard at the D.C. Circuit while he’s the Supreme Court nominee. Legal experts say there aren’t firm rules but that judges sometimes recuse themselves from cases in order to avoid the appearance of a conflict of interest.

Garland was slated to sit on two judicial panels tomorrow and Friday, where he was scheduled to hear arguments in cases involving the Federal Energy Regulatory Commission and the Interior Department. The court sent out notices today that other judges will be taking his place on those panels, and it appears as though he won’t be hearing arguments, at least in the near term.

President Obama said today that Garland will start meeting with senators tomorrow to discuss his nomination. The D.C. Circuit’s clerk’s office declined to comment about how Garland’s pending cases will be handled.

It’s possible the judge will still participate in deciding cases that have already been heard.

Apart from the decision to send the mercury rule back to EPA in light of the Supreme Court’s ruling, Garland hasn’t been involved in any major energy or environmental cases this term that are still pending before the court.