Industry groups that rely on federal courts to fight regulations and legislation flowing from a Democratic White House and Congress may face frustrations as President Obama makes his mark on the judiciary.
"Groups that are opposed to stricter environmental regulations will naturally turn to the conservative-leaning federal courts if the other two avenues have been blocked," said John Nagle, an environmental law professor at the University of Notre Dame. "But what's going to happen to these challenges to the more robust environmental regulations once many of the these judicial appointments go through?"
With the Supreme Court issuing fewer than 100 decisions a year, lower courts have the final say in more than 99 percent of cases. Right now, Republican appointees have an 88-60 advantage on the 13 circuit courts, and Obama's impact there could be dramatic. With 19 vacancies and more than two dozen potential openings for judges up for senior status, the president may be able to completely reshape a conservative-dominated judiciary to one largely controlled by Democratic appointees.
"For the last couple of decades, Republican presidents have been resolute in their determination to advance long-term policy objectives by appointing conservative judges," said John Echeverria, an environmental law professor at Vermont Law School. "One would hope that the Obama administration will attempt to restore balance to the federal courts."
Environmental groups are not guaranteed a smooth ride at the appellate level, however. None of Obama's first seven circuit court and nine district court nominees has an explicit environmental law background, and several have ruled as lower court judges against environmental interests.
At the appeals court level, the White House has so far sought to fill open seats on the 2nd, 3rd, 4th, 6th, 7th and 11th U.S. Circuit Courts of Appeal. While the 9th and 10th Circuits are often seen as getting the bulk of environment-themed cases, these other courts typically hear high-profile appeals for violations of pollution standards, Superfund cleanups, Endangered Species Act challenges and even public-land disputes.
Three circuit court judges have passed the Senate Judiciary Committee and await confirmation by the full Senate. The remaining four are awaiting a nomination hearing.
In April, Obama nominated District Judge Gerard Lynch to a seat on the 2nd Circuit. Lynch, a judge on the U.S. District Court for the Southern District of New York, would fill one of four vacancies on the court that has appellate jurisdiction over Connecticut, four districts in New York and Vermont.
Six Republican-appointed judges sit on the court, while four Clinton-era appointees have taken senior status and one judge, Sonia Sotomayor, was recently elevated to the Supreme Court.
In June, the Judiciary Committee approved Lynch's nomination, but a floor vote has not yet been scheduled.
"The 2nd Circuit is in New York and is mainly famous for its business and finance cases, but -- like the 3rd -- it also gets a typical mix of Northeast pollution-control cases," said Jay Austin, who heads the Environmental Law Institute's program that monitors Supreme Court environmental litigation. "I believe, for example, that much of the endless General Electric-Hudson River cleanup litigation has taken place there."
During her confirmation hearings, Sotomayor was asked to address environmental cases she had ruled on that concerned regulatory takings, the Constitution's Commerce Clause and her views on upholding congressional actions regarding the Clean Water Act.
All but one of the five environmental cases that reached the Supreme Court last term originated from the 9th Circuit. The remaining case came from the 2nd Circuit.
In the case, the Supreme Court reversed a 2007 ruling by then-Judge Sotomayor, which held that no cost-benefit test could be used to determine the most environmentally friendly technology for withdrawing water from rivers and streams to cool turbines.
Obama has made two nominations to the 3rd Circuit based in Philadelphia. In June, the president nominated Joseph Greenaway Jr. of the U.S. District Court in New Jersey to the bench, and earlier this month, he nominated Thomas Vanaskie, a federal district judge in Pennsylvania.
"The court hears a mix of Northeastern industrial cases under the major pollution-control statutes, Superfund litigation from Pennsylvania, Delaware and New Jersey, and maybe some mining cases from western Pennsylvania," Austin said. "Justice Samuel Alito sat on the 3rd Circuit before being elevated, and I recall that when we researched his prior record, we ended up focusing on one or two citizen enforcement suits under the Clean Water Act."
Alito joined a 2-1 majority opinion in the 1997 case PIRG v. MEI, in which the court threw out a $2.6 million fine against a manufacturing company because it determined that environmental groups that brought the case did not have standing. Specifically, Alito wrote that the plaintiff never demonstrated that pollution from the manufacturer caused direct harm to the Delaware River, even though the company had been cited for 150 Clean Water Act violations.
In another controversial case mentioned during his confirmation hearings, Alito was asked to address his dissent from a three-judge panel in U.S. v. Rybar, in which he argued that the Commerce Clause did not give Congress the authority to regulate sales of machine guns that did not cross state lines.
Environmentalists repeatedly cited the Rybar dissent as an indicator that Alito may be willing to undermine or overturn the constitutional basis for landmark environmental laws such as the Endangered Species Act and the Clean Water Act.
In the past three years, the 3rd Circuit has ruled in a "decent number of Superfund cases," according to John Dernbach, a law professor at Widener University in Harrisburg, Pa.
"The dominant plaintiff in these cases has been private parties and landowners and not environmental groups," Dernbach said. "Ofte, private parties or landowners will sue other private parties or landowners, and nearly half of the cases I examined fit that pattern. In Superfund cases, this means that one potentially responsible party is suing another potentially responsible party for contribution or to recover part of the cleanup costs."
The 4th Circuit in Richmond has gained increasing prominence in recent years, hearing cases related to national security and antiterrorism policies.
Retirements on the 15-member court have left it divided with a slim 6-to-5 majority of Republican-appointed judges. The president has four vacancies to fill and the potential to drastically reshape the court, which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina.
"The 4th Circuit is fairly small, so he could have a fairly immediate, discernible influence there," said John Leshy, an environmental law scholar at the University of California's Hastings College of the Law.
The 4th and 6th Circuits typically hear a number of mountaintop-removal mining cases. In June, the court declined to reconsider its decision to uphold an Army Corps of Engineers project review for a mountaintop mine.
Meanwhile, a ruling in January that addressed Commerce Clause issues could have a major impact on environmental law.
The court held that civil commitment provisions of the Sexual Offender Registration and Notification Act were unconstitutional, as they were beyond Congress' Commerce Clause power. The government filed -- and the Supreme Court granted -- a petition for review in the case, which will be decided during the upcoming term.
In April, Obama nominated Baltimore-based federal trial court Judge Andre Davis to fill a seat that has been vacant since 2000. The Judiciary Committee approved the nomination in June, but a floor vote has not been scheduled.
Davis once sat on the board of the Foundation for Research on Economics and the Environment, an organization funded by companies such as Texaco, Exxon Mobil Corp. and General Motors Corp. that opposes environmental regulation. He resigned in 2005 after a formal ethics opinion by the judiciary Code of Conduct Committee found a "tension" between his membership on FREE's board and his obligations as a judge.
Earlier this month, Obama nominated Nashville attorney Jane Branstetter Stranch to a seat on the 6th Circuit, which handles all federal appellate litigation in Michigan, Ohio, Kentucky and Tennessee.
"The 6th Circuit covers a good part of Appalachian coal country," Austin said. "As in the 4th Circuit, which includes West Virginia, it has seen a lot of litigation about mountaintop-removal mining, which has been very controversial for the last 10 years or more. The parties on both sides are very tenacious, and there are still a lot of issues to be resolved, so those kinds of cases are likely to continue to come up in the future."
Environmental cases coming from the Great Lakes region, forests in Ohio and wetlands in Tennessee and Kentucky also frequently come before this circuit, according to Dean Rivkin of the University of Tennessee's College of Law.
"It's been a grab bag of across-the-board sort of environmental cases over the years," Rivkin said. "I don't think you can characterize it as having a disproportionate number of cases in any one particular area."
In January, the circuit court vacated U.S. EPA's 2007 rule exempting certain pesticide applications that are compliant with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) from the permitting requirements of the Clean Water Act.
Meanwhile, in the 2006 case Citizens Coal Council v. U.S. EPA, a divided court narrowly upheld EPA's rule easing the environmental requirements for re-mining of abandoned coal mines under the Clean Water Act.
"This was the final resolution to one of the litigation threads in the 6th Circuit, noteworthy because it was decided en banc, with the votes falling almost entirely along party lines," Austin said. "Any Obama appointment might alter this balance on the 6th, which has demonstrably affected environmental issues."
In March, David Hamilton of the U.S. District Court for the Southern District of Indiana became President Obama's first circuit court nominee.
"The court gets some national forest questions and a handful of Endangered Species Act cases, but you're mostly going to see pollution issues -- like CERCLA cleanups," Nagle said.
Nagle pointed to a high-profile lower court case from two years ago in which Hamilton ruled in favor of state and federal officials that the new-terrain route of Interstate 69 from Evansville to Indianapolis could proceed.
"The state had proposed a route that a lot of the southern Indiana community liked but that environmental groups did not because it went through a relatively undeveloped area with various kinds of habitat," Nagle said. "The Hoosier Environmental Council filed suit, challenging the construction of the road under NEPA and a bunch of other things, but he upheld the government's decision."
There were also some cases dealing with Clean Water Act issues in which Judge Hamilton deferred to EPA or the Army Corps of Engineers, Nagle said.
"This doesn't suggest he will be a foe of environmentalists, just that as a district judge he was deferential to the government and statutes," Nagle said. "It could become much more readily apparent where he stands when he joins the circuit court."
In June, Obama nominated Beverly Martin, a U.S. district court judge in the Northern District of Georgia, to the 11th Circuit, which hears federal appeals from Georgia, Alabama and Florida.
In 2002, Judge Martin rejected a claim by environmental groups that state and federal agencies violated the Clean Air Act by approving metropolitan Atlanta's $36 billion transportation plan.
In addition to air pollution, "you'll see a lot of waters, wetlands and endangered species litigation from the 11th, largely because of its Southeastern geography and the trend for rapid development in Florida and other states," Austin said.
In June, the court ruled that Florida water managers did not violate the Clean Water Act when they pumped dirty water from farmland into Lake Okeechobee.
Reversing a lower court ruling, the three-judge panel of the court said their decision hinged on "ambiguous" federal anti-pollution laws and that they had no choice but to accept EPA's interpretation that transferring polluted water from one navigable body to another does not require a permit.
In 2007, the court issued a high-profile decision in U.S. v. McWane, striking down the convictions of pipe manufacturer McWane Inc. and three executives for environmental crimes involving the company's Birmingham, Ala., plant.
Last year, the solicitor general asked the Supreme Court to review the case, which the government argued had resulted from confusion created by the court's 2006 decision in Rapanos v. U.S., a wetlands case.
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