Potential Obama picks are seasoned regulatory referees

Source: Robin Bravender, E&E reporter • Posted: Tuesday, March 8, 2016

Two more high-profile federal judges with experience deciding environmental cases are reportedly being vetted by the White House for the Supreme Court vacancy.

Judge Sri Srinivasan and Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit have been the subjects of FBI background checks, The New York Times reported. The two appeals court judges have been widely cited as potentially attractive picks for President Obama as his administration looks to circumvent staunch Republican opposition to any nominee before the November presidential election.

Obama appointee Srinivasan, 49, and Clinton appointee Garland, 63, were both confirmed with Republican support. Srinivasan was confirmed unanimously in 2013 by a 97-0 Senate vote. Garland was confirmed 76-23 in 1997; when he was discussed as a possible Obama Supreme Court nominee in 2010, Republican Sen. Orrin Hatch of Utah told Reuters that Garland “would be very well supported by all sides.”

Srinivasan faced some opposition from greens in 2013 when he was under consideration for the D.C. Circuit.

EarthRights International urged senators to oppose his nomination, complaining about work he did for Exxon Mobil Corp. as a partner at the law firm O’Melveny & Myers. Srinivasan at the time was among the lawyers representing the oil firm in a case surrounding alleged human rights violations in Indonesia. Exxon argued it was immune from liability under a law that allows federal courts to hear human rights claims filed by citizens of other countries.

“Mr. Srinivasan’s record shows a commitment to serving corporate persons, rather than making the law work for real people,” EarthRights International said in 2013. The group, however, has since reconsidered its position after evaluating Srinivasan’s record on the D.C. Circuit, wrote Marco Simons, Americas Regional Program director at EarthRights International. “We’re not endorsing any candidates for the Supreme Court, but we do not oppose Srinivasan’s nomination, although we continue to believe the Senate should receive full information about his work as a government lawyer that may have benefited his former corporate clients,” he wrote last month on the group’s website.

Since joining the D.C. Circuit in 2013, Srinivasan has made a series of pro-environmentalist moves.

Most recently, he was on a panel of judges that rebuffed requests to freeze the administration’s Clean Power Plan. That decision was overturned by the Supreme Court last month when the justices decided to step in and halt the rule, but litigation over the rule to limit power plants’ greenhouse gas emissions is continuing in the D.C. Circuit. Srinivasan is slated to be on the three-judge panel that hears arguments in that blockbuster lawsuit in early June.

In a 2014 ruling from a divided court, Srinivasan wrote a majority opinion siding with environmentalists over EPA. He found that the agency had acted illegally in 2008 by extending a compliance deadline for areas to meet an air quality standard for ozone (Greenwire, Dec. 23, 2014).

Srinivasan and Garland both ruled in 2014 that environmentalists could challenge an Interior Department decision that would allow coal mining at the site of a historic 1921 coal miner uprising in West Virginia. The opinion, written by Srinivasan, found environmentalists had legal standing to challenge the decision because they had shown their injury was concrete and imminent. A Republican-appointed judge on the panel dissented from the opinion (Greenwire, Aug. 26, 2014).

Also in 2014, Srinivasan sided with EPA in a lawsuit from states and the mining industry that took aim at Obama administration policies cracking down on mountaintop-removal coal mining. In that opinion, Srinivasan signed on with two Republican-appointed judges to uphold policies that imposed stricter rules for addressing water contamination near mining operations (Greenwire, July 11, 2014).

Garland called ‘model, neutral judge’

With nearly two decades on a court that frequently referees fights over federal agencies’ rules, Garland has an even longer track record on environmental cases.

When Garland’s name was being floated for the high court in 2010, Supreme Court watcher Tom Goldstein called him the “model, neutral judge” who is “acknowledged by all to be brilliant” and had “broad support on both sides of the aisle.” The White House instead nominated Elena Kagan to replace retiring Justice John Paul Stevens that year.

Assessing Garland’s record in 2010, Goldstein wrote on the website SCOTUSblog that the judge had “strong views favoring deference to agency decisionmakers.” Goldstein said environmental law, however, is “in fact the area in which Judge Garland has been most willing to disagree with agency action.” On environmental law, Goldstein wrote, “Judge Garland has in a number of cases favored contested EPA regulations and actions when challenged by industry, and in other cases, he has accepted challenges brought by environmental groups.”

Recently, Garland was on a three-judge panel that upheld EPA’s mercury standards for power plants in 2014. That rule was later knocked down when the Supreme Court ruled EPA hadn’t properly considered costs, and the D.C. Circuit sent the rule back to the agency to bring it in line with the ruling (Greenwire, Dec. 15, 2015).

Also last year, Garland joined his colleagues in rejecting a challenge to the Interior Department’s plan for oil and gas leases on the outer continental shelf (Greenwire, March 6, 2015).

If either of the D.C. Circuit judges is named as Obama’s nominee, his judicial record is certain to come under further scrutiny.

Among the other federal judges reportedly being vetted by the White House is Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia, a 45-year-old African-American judge who’s related to House Speaker Paul Ryan (R-Wis.) by marriage (Greenwire, March 2). Judge Jane Kelly, 51, whose nomination to the 8th U.S. Circuit Court of Appeals was supported by Senate Judiciary Chairman Chuck Grassley (R-Iowa), has also reportedly been under consideration (Greenwire, March 3).

Political sparring continues

The Obama administration hasn’t yet announced when a nominee will be named.

White House spokesman Josh Earnest last week declined to comment on any meetings with candidates for the job but said officials continued to review material about potential nominees.

“At this point, I don’t have additional timing guidance to share,” Earnest told reporters Friday. “I think the things that we have acknowledged is that the two previous vacancies — that nominees for the two previous vacancies were announced about four or five weeks after those vacancies occurred.” Obama wrote in late February that he would make an announcement in the coming weeks.

Meanwhile, the political battle over whether Obama or the next president should name the nominee continues to play out in the media.

Vermont Sen. Patrick Leahy, the top Democrat on the Senate Judiciary Committee, wrote a post on SCOTUSblog yesterday criticizing his Republican colleagues for pledging to hold up Obama’s nominee.

“Unfortunately, eleven Republican Senators are trying to deny a full and open debate on the next nominee to the Supreme Court — BEFORE that individual has even been named,” Leahy wrote.

He went on to accuse his Republican colleagues on the committee of unilaterally deciding against considering a nominee this year in a “closed-door, backroom meeting in the Capitol,” a meeting “closed to press, to the public, and to Democratic senators who serve on the Judiciary Committee.”

Ahead of his meeting with Obama last week, Grassley wrote his own post on SCOTUSblog, pledging that “Senate Republicans will ensure the American people are not denied” the “unique and historic opportunity” to impact which political party picks the next justice when they elect the next president in November (Greenwire, March 1).