What Merrick Garland as attorney general means for the environment

Source: By Dino Grandoni, Washington Post • Posted: Monday, January 11, 2021

President-elect Joe Biden’s pick for attorney general, U.S. Appeals Court Judge Merrick B. Garland, is set to bring deep expertise on environmental law to the Justice Department.

Garland is best known for having his nomination to the Supreme Court shot down by Senate Republicans during President Barack Obama’s last year in office. But he is also well versed on the nation’s major anti-pollution laws as the chief justice of the federal court second only to the high court in matters of environmental law.

If confirmed, he will inherit a department that critics, including Biden, say has curtailed prosecution of polluters under President Trump. The former vice president campaigned on increasing enforcement of Clean Air Act violations and other laws.

Biden’s choice of Garland, announced Wednesday, was overshadowed by the attacks on the Capitol by a pro-Trump mob.

Garland often sides with stronger environmental regulations.

Garland has heard his fair share of cases between industry and environmentalists, having served for more than two decades on the U.S. Court of Appeals for the District of Columbia Circuit. The court has a heavy caseload of Clean Air Act and other environmental work.

“In part this reflects the view of Congress that these laws are so complicated that it is best left to one U.S. Court of Appeals to develop expertise with these laws,” said Robert Percival, professor and director of the environmental law program at the University of Maryland School of Law.

Early in his court tenure, Garland voted to reconsider a case invalidating the Environmental Protection Agency’s program for curbing pollution from ozone and particulate matter, both linked to lung disease and other illnesses. The case made its way to the Supreme Court, which upheld the agency’s authority to regulate the pollutants.

Garland also wrote an opinion upholding the constitutionality of the Endangered Species Act and ruled in favor of the Sierra Club when it challenged the George W. Bush administration’s decision to defer enforcing ozone standards in the Washington area.

“He has as a judge shown a willingness to defer to environmental agencies’ legal and scientific judgments,” said Lisa Heinzerling, a law professor at Georgetown University. “I hope he’ll continue that practice as attorney general, especially if the agencies are trying to respond aggressively and creatively to our severe environmental problems.”

As the Biden administration restores safeguards and cuts emissions, Garland also will make sure the Environmental Protection Agency and other offices dot their i’s and cross their t’s when shifting policies, according to Columbia Law School professor Michael Gerrard.

Over the past four years, judges have repeatedly rebuked the Trump administration officials for failing to follow the rules for writing regulations under the Administrative Procedure Act. Gerrard doesn’t expect the same sloppiness under Biden.

“No one knows the Administrative Procedure Act better than judges of the D.C. Circuit,” Gerrard said.

Biden wants to beef up prosecution of polluters.

One of the first items on his campaign plan for confronting the disproportionate influence pollution has on poor and minority communities is to establish a new Environmental and Climate Justice Division in the Justice Department and to press for legislation to hold corporate executives personally accountable for environmental degradation.

Since winning the election, Biden has not yet named  anyone to run the new division. Nor has he picked the head of the agency’s existing Environment and Natural Resources Division.

Jamal Raad, campaign director at the green group Evergreen Action, urged the Biden administration to change the department’s historic underinvestment in the enforcement of environmental laws.

“The Department of Justice can become a powerful climate agency through strict enforcement of laws already on the books,” he said.

Widely regarded as a competent moderate, Garland should have an easy time getting approved, especially after Democrats took a narrow majority in the Senate with the twin wins in the Georgia runoff election. Garland was confirmed for his current seat by a 76-to-23 vote in 1997.