Merrick Garland could energize enviro issues at DOJ

Source: By Pamela King, E&E News reporter • Posted: Sunday, January 10, 2021

President-elect Joe Biden has chosen as his top lawyer a jurist who legal experts say could bring environmental issues into the spotlight at the Justice Department.

If confirmed to serve as attorney general, Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit would carry a strong environmental record as a member of a bench that is often the last stop for legal disputes over EPA rules.

“I would also expect him to both energize and emphasize environmental matters, including environmental justice, based on his track record in the Court of Appeals, where he usually ruled in favor of environmental goals, often writing the court’s opinion,” said John Cruden, principle at the firm Beveridge & Diamond PC.

Cruden — who served at DOJ under multiple administrations and worked with Garland during the Clinton years — said the judge is the “right man at the right time” to take the helm at a department that for much of the last four years has been tasked with defending massive regulatory rollbacks and, at times, President Trump himself.

Observers say DOJ career staff have been demoralized by Trump’s political pressure on the department, including his claims of election fraud that preceded the resignation of Attorney General William Barr (Greenwire, Dec. 15, 2020).

Garland, who was confirmed to the D.C. Circuit during the Clinton administration by a 76-23 bipartisan Senate vote, is expected to be a strong, consensus-building leader at DOJ.

Prior to joining the D.C. Circuit, Garland held several high-profile positions at DOJ, served as a partner at the firm Arnold & Porter and clerked for former Supreme Court Justice William Brennan Jr. He is a graduate of Harvard University and Harvard Law School.

Biden and Vice President-elect Kamala Harris also officially announced today Lisa Monaco as their choice for deputy attorney general, Vanita Gupta as associate attorney general and Kristen Clarke as assistant attorney general for the Civil Rights Division. All three are DOJ veterans.

“Our first-rate nominees to lead the Justice Department are eminently qualified, embody character and judgment that is beyond reproach, and have devoted their careers to serving the American people with honor and integrity,” Biden said in a statement this morning.

“They will restore the independence of the Department so it serves the interests of the people not a presidency, rebuild public trust in the rule of law, and work tirelessly to ensure a more fair and equitable justice system,” he said.

The Biden campaign has not yet announced who will lead DOJ’s Environment and Natural Resource Division (ENRD) or the Environmental and Climate Justice Division the president-elect has pledged to establish.

When news of Garland’s appointment first broke yesterday, green groups noted that the judge is known to be moderate in his approach and may not be as aggressive on environmental issues as some advocates might hope (Greenwire, Jan. 6).

But legal experts said that Garland’s experience on the D.C. Circuit means that he could perhaps be one of the strongest U.S. attorneys general on the environment.

“Given the importance of environmental issues, especially climate issues to President-elect Biden and Vice President-elect Kamala Harris’ campaign platform, it’s possible we’ll see Garland take a hands-on approach to DOJ’s environmental docket,” said Simone Jones, an associate at the firm Sidley Austin LLP.

Of course, most of DOJ’s environmental work will fall to the team at ENRD. But Jones said she could see Garland signaling to the public and to the parties involved in high-profile environmental cases that he will have an eye on those fights.

Garland’s reputation as an administrative law expert and institutionalist will likely bode well for DOJ’s defense of Biden’s environmental rules, said Sam Sankar, senior vice president for programs at Earthjustice.

“He’s been a solid positive voice for the importance and legitimacy of government regulation and understands that regulation is the necessary outgrowth of the responsibility of the government,” Sankar said.

At the same time, he said, Garland will have many priorities beyond environmental issues — such as voting rights and domestic terrorism.

“DOJ has a lot on its plate,” Sankar said, “and I don’t think that Garland plans to make combating climate change the top priority for all of federal law enforcement.”

Garland’s enviro record

During his time on the D.C. Circuit, Garland has been known as a strong vote in favor of deferring to agency decisionmakers — except in cases that might pose harm to the environment.

Cruden pointed to Garland’s 1999 vote in American Trucking Associations Inc. v. EPA to reconsider the D.C. Circuit’s rejection of EPA’s National Ambient Air Quality Standards following an industry challenge of the regulation.

The case eventually reached the Supreme Court, which unanimously agreed with Garland’s position, finding that EPA had the authority to set air quality standards but could not consider implementation costs in crafting those rules.

In Sierra Club v. EPA, Garland sided with environmentalists challenging the George W. Bush administration’s EPA for delaying enforcement of ozone standards in Washington.

“We agree with Sierra Club’s principal contention that EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the Act requires today,” Garland wrote in his 2004 opinion in the case.

Garland has also voted to support the power of environmental groups to bring lawsuits in federal court, as he did in the 2005 case National Parks Conservation Association v. Manson, which upheld green groups’ standing to challenge a power plant authorization.

Jones said she expects Garland’s long history at the D.C. Circuit — particularly in the environmental realm — to “inform and influence his role at DOJ.”

Confirmation

Democratic victories yesterday in both of Georgia’s runoff elections are likely to create smoother sailing for any Biden pick who comes before the Senate.

Although Garland does not appear to be a controversial choice for attorney general, he was famously tied up in a heated, partisan confirmation battle after President Obama chose him in 2016 to replace the late Supreme Court Justice Antonin Scalia.

Senate Republicans, including former Judiciary Chairman Lindsey Graham of South Carolina, ultimately blocked Garland from taking a seat on the nation’s highest bench, paving the way for President Trump to appoint Justice Neil Gorsuch in 2017.

Graham tweeted yesterday that Garland was a “sound choice” for attorney general. He added that he looked forward to Garland’s confirmation process and “will closely follow his answers,” although he stopped short of committing his support.

If he is confirmed, Garland will have the opportunity not only to bolster DOJ’s environmental profile but also offer a much-needed morale boost for department staff, Cruden said.

“We are at a crucial time in our nation’s history when institutions are being challenged, career government employee’s morale is at its lowest, and decisions made during the last four years have made politics more important than justice,” Cruden said. “Now, more than ever, we need an attorney general with a spotless record, a lifelong zeal for fair dealing and the rule of law, and a commitment to institutional normalcy, independence and enforcement.”

He added: “Merrick Garland is the man for the season.”