One of the most bitter partisan fights awaiting the Senate on its return from recess will be President Obama's push to appoint three new judges to the country's most influential appeals court.
Obama and Senate Democrats say the nominees to the U.S. Court of Appeals for the District of Columbia Circuit are needed to fill out its 11-member bench and restore balance to a court that has been dominated by Republican appointees.
But a close look at rulings over the last year in the environmental, energy and conservation realm shows that the administration -- and in particular, U.S. EPA -- has fared well at the D.C. Circuit.
To be sure, there have been exceptions, most notably the court's striking down EPA's air program for pollution that drifts across state lines.
But the court also upheld EPA's greenhouse gas air regulations in a landmark case, as well as the agency's approval of gasoline blended with a higher percentage of ethanol. Moreover, the circuit rebuffed industry challenges to several air standards.
"The idea that the D.C. Circuit has been particularly hostile toward agencies or regulation is just not borne out," said Jonathan Adler, an environmental law professor at Case Western Reserve University School of Law in Cleveland, Ohio.
The D.C. Circuit has ruled on more than 20 significant challenges to EPA regulations since June 2012. Of those, EPA won at least a dozen, or 60 percent, a better performance than EPA had at the circuit during George W. Bush's administration, when it frequently lost to environmentalists. On top of the dozen, the agency scored partial wins in other cases by prevailing on some issues while losing on others.
And EPA's victories included a majority of the most-watched environmental cases at the D.C. Circuit.
In June 2012, a three-judge panel rejected an industry- and state-backed challenge to four EPA greenhouse gas air regulations in an unanimous decision. Two months later, the court upheld EPA's approval of gasoline blended with 15 percent ethanol, or E15, in another challenge from multiple industries (Greenwire, Aug. 17, 2012).
And perhaps most notable was the D.C. Circuit's decision in April backing EPA's authority to retroactively veto a Clean Water Act permit for a mountaintop-removal coal mine four years after it was issued by the Army Corps of Engineers (Greenwire, April 23).
Environmentalists caution that the numbers shouldn't be interpreted to mean the D.C. Circuit doesn't need new judges, or that the court doesn't tilt against EPA. In particular, they point to the current lineup of judges and to the cross-state air ruling.
Until recently, the D.C. Circuit had seven active judges and four vacancies. Of the seven, four are Republican appointees, and three are Democratic. The split became 4-4 when the Senate unanimously confirmed Deputy Solicitor General Srikanth "Sri" Srinivasan to the court in May. Srinivasan is the first Obama appointee to the D.C. Circuit.
Among senior judges, who hear a reduced caseload, Republicans hold a greater advantage, with five having been Republican appointments and one having been placed on the bench by a Democrat.
Liberals and environmentalists argue that Obama has a constitutional right to fill the remaining three vacancies on the circuit. The president has nominated appellate lawyer Patricia Millett, U.S. District Judge Robert Wilkins and Georgetown Law professor Cornelia "Nina" Pillard.
They also point to the D.C. Circuit's having struck down EPA's Cross-State Air Pollution Rule, or CSAPR, as an example of the court's conservatives -- specifically Judge Brett Kavanaugh -- taking an activist stance against the agency.
In the August 2012 opinion, Kavanaugh wrote that EPA had "transgressed its statutory boundaries" in creating the program to protect residents of 28 Eastern states from pollution drifting across state lines.
Kavanaugh's ruling drew a stern rebuke from Judge Judith Rogers, a Democratic nominee, who wrote a forceful dissent (Greenwire, Aug. 21, 2012).
Glenn Sugameli, who tracks the D.C. Circuit for Defenders of Wildlife, said EPA should do well at the D.C. Circuit because of the Supreme Court's ruling in 1984's Chevron v. Natural Resources Defense Council. The ruling said that as long as EPA interpreted the law reasonably in crafting regulations, courts should defer to the agency.
But opinions like Kavanaugh's in the CSAPR case, Sugameli said, can have an outsized impact.
"The major issue is, even if you have a series of pretty good or decent opinions, one really bad opinion can be so bad on the facts or so bad on the law that you're inviting a series of challenges," Sugameli said.
Environmentalists argue that Obama must fill the vacancies on the circuit so rulings like the CSAPR decision are reviewed by the circuit en banc, meaning before all of the circuit's judges. After a decision, the losing party may petition for an en banc review. It takes the votes of a majority of active judges on the circuit to grant such a request.
Sugameli and other environmentalists contend that if the court had been more balanced at the time, the CSAPR decision would have earned en banc review because of Rogers' forceful dissent.
"You don't have enough judges to have the mass that's required to rein in very extreme opinions," Sugameli said.
Instead, EPA has to wait for the Supreme Court to review the case this fall (Greenwire, June 24).
Adler of Case Western, who clerked on the D.C. Circuit, countered that the court also threw out the George W. Bush-era Clean Air Interstate Rule, or CAIR, in 2008 for not sufficiently protecting public health. That, he said, is likely a sign that there is a problem in the Clean Air Act when it comes to crafting a cross-state program that will stand up to judicial scrutiny.
Scott Segal, a partner at Bracewell & Giuliani who represents industry interests, added that the D.C. Circuit hasn't aggressively sought to crack down on environmental groups' standing, meaning whether the organizations have proved they are sufficiently injured in order to bring lawsuits -- a key hurdle in environmental law.
A conservative or anti-environmental court, Segal argued, would likely seek a narrow definition of standing for conservationists, which would curtail their chances of winning future cases.
Instead, he said, the court has limited industry's standing, tossing out its challenges to the E15 rule as well as two others involving EPA's greenhouse gas rules on standing grounds.
"I think there is an overwhelming temptation to view the votes on the D.C. Circuit as somehow a litmus test for President Obama's broader environmentalist and regulatory agenda," Segal said. "Among the judges who hear environmental cases, you have a pretty balanced lot. And you have a pretty balanced results."
That isn't to say EPA hasn't suffered some setbacks from the court. In January, for example, the court said EPA needed to re-examine its implementation of air standards for fine particles, a win for environmentalists who challenged the rule (Greenwire, Jan. 4).
More recently, the court instructed EPA to justify its methodology for calculating sewage sludge incinerator air standards earlier this month (Greenwire, Aug. 20). And in July, the court vacated a greenhouse gas rules exemption for biomass burning facilities (Greenwire, July 12). Both were challenges brought by environmentalists.
The Obama administration has also criticized the D.C. Circuit's January ruling that invalidated the president's recess appointments to the National Labor Relations Board. The holding drastically reduced the president's authority to make such appointments (E&ENews PM, Jan. 25). The Supreme Court will also hear that case next term.
Appetite for 'legal risks'
Nevertheless, EPA has done noticeably better at the D.C. Circuit under the Obama administration than it did during George W. Bush's presidency, said John Walke of the Natural Resources Defense Council, who has written on the topic.
Walke calculated that environmentalists prevailed at the D.C. Circuit 27 times when challenging Bush EPA air rules. During the Obama administration, environmentalists have won at the D.C. Circuit far fewer times, and that includes some instances in which the Obama administration was defending Bush-era rules. (Walke's calculations account for the fact that Obama has yet to serve two full terms.)
Moreover, compared to the Bush administration -- when industry rarely won when challenging an EPA rule as too stringent, but environmentalists frequently succeeded in challenging the rules for being too weak -- there has been relative parity between industry and environmentalist wins during Obama's time in office. That's a sign, Walke said, of a more balanced record at the D.C. Circuit.
Walke attributes the difference in results to the different legal styles of the administrations.
"The question with EPA's track record is much more a factor of the legal risks undertaken by any particular administration," Walke said. "The Bush administration took vastly greater legal risks than the Obama administration. The Bush administration's poor track record in court reflects that."