Appeals court panel a ‘lucky’ draw for EPA

By Robin Bravender | 01/22/2016 12:21 PM EST

The Obama administration has chalked up a series of early wins in the behemoth lawsuit challenging its signature climate rule. The latest: scoring a panel of judges that’s widely seen as favorable to the government.

The Obama administration has chalked up a series of early wins in the behemoth lawsuit challenging its signature climate rule.

The latest: scoring a panel of judges that’s widely seen as favorable to the government.

"They did get lucky," said James Rubin, a partner at Dorsey & Whitney LLP and former Justice Department attorney. "It could have been a lot worse."


On top of shooting down a request to halt the administration’s Clean Power Plan yesterday, the U.S. Court of Appeals for the District of Columbia Circuit announced which three judges would decide whether the contentious regulation violated the law. They are: Judges Karen LeCraft Henderson, a Republican appointee, and Democratic appointees Judith Rogers and Sri Srinivasan.

"That’s a pretty good panel for the government," said Jonathan Adler, a professor at the Case Western Reserve University School of Law who previously clerked on the D.C. Circuit.

The three-judge panel ordered an expedited time frame for the high-stakes case, scheduling oral arguments for June 2.

The lawsuit involves nearly 150 groups — including 27 states — suing the Obama administration over its rule to curb greenhouse gases from power plants. The final regulation is expected to reduce carbon dioxide emissions from power plants 32 percent below 2005 levels by 2030. State and industry groups contend that the rule is illegal and will have devastating economic impacts, while U.S. EPA and its backers insist it’s an important step toward staving off the impacts of climate change.

An opinion from the D.C. Circuit’s three-judge panel — which could be issued in late summer or early fall — is certain to be challenged regardless of the outcome, and the case is widely expected to wind up in the Supreme Court. Still, every court battle along the way will be important, and legal observers say it would be a bad sign if EPA doesn’t get a favorable ruling when these judges dig into the merits.

Challengers of the rule tried — and failed — to keep the same panel of three conservative judges that rejected an earlier attempt to block EPA from even finalizing the rule. Those Republican-appointed judges — Henderson, Brett Kavanaugh and Thomas Griffith — rejected the early challenge on procedural grounds but didn’t delve into the merits of the case.

State challengers of the rule told the court that "considerations of judicial efficiency" warranted keeping the same judges on the case. But the court denied that request, paving the way for the new panel that’s seen as more likely to side with the administration.

That panel "would have been very bad for EPA," Rubin said. "If they lose in this panel, though, then they’ve got a problem."

Srinivasan as ‘the swing’?

Lawyers following the case insist that it’s impossible to predict how any particular judge will rule in a case, but their track records can give some indications about how they’ll approach the issues. The droves of lawyers involved in the case are now hustling to study the judges on the panel to determine what arguments might sway them.

Here’s a look at the three judges who will decide the case on its merits:

Judith Rogers: Rogers was appointed in 1994 by President Clinton after serving on the D.C. Court of Appeals, where she was chief judge. She previously worked in the Justice Department’s criminal division and deputy attorney general’s office.

Rogers has a reputation as an EPA defender. In a 2012 decision to throw out the Obama administration’s Cross-State Air Pollution Rule, Rogers dissented from her colleagues in the 2-1 ruling, saying that the decision was "trampling" on the court’s precedent on Clean Air Act issues (Greenwire, Aug. 21, 2012). The Supreme Court later upheld EPA’s program.

"Judge Rogers tends to give federal agencies a fair amount of leeway," Adler said.

Rubin added that "if they can’t get Rogers now, they’re going to have a hard time convincing the other judges on the court." Regardless of what the panel decides, one party is likely to seek en banc review by the full court.

Karen LeCraft Henderson: Henderson, a veteran of the D.C. Circuit, was appointed in 1990 by President George H.W. Bush. She had been a U.S. district court judge in South Carolina since 1986, when she was appointed to that job by President Reagan.

She’s best known in the environmental world for sitting on the panel that heard the challenge to EPA’s draft rule. In that case, Henderson joined her colleagues in refusing to block EPA from finalizing its then-draft rule. But while her colleagues said they do not have authority to review proposed agency rules, Henderson called that a "cramped view" of their authority. "We have jurisdiction here to issue a writ of prohibition," she wrote. "Nevertheless, simply because we have jurisdiction to grant a writ of prohibition does not mean that it is always appropriate to do so."

"More likely than not, she’ll be a conservative vote against," Rubin said. But in the previous challenge, he added, "she didn’t really show her cards on the merits."

Sri Srinivasan: The newest arrival on the judicial panel is Srinivasan, a President Obama appointee who joined the court in 2013. He was principal deputy solicitor general during the Obama administration and previously worked for the law firm O’Melveny & Myers LLP. He was also a law clerk for former Supreme Court Justice Sandra Day O’Connor.

Srinivasan, 48, was dubbed "The Supreme Court Nominee-in-Waiting" by New Yorker writer Jeffrey Toobin in 2013. He’s seen as smart but difficult to predict because he hasn’t been on the court very long.

"He’s the judge that we don’t know as much about in terms of how he’ll approach some of the larger questions that will play here," Adler said. "I think he would be inclined to give the EPA more leeway than, say, some of the more conservative judges on the court. He will likely be the swing on that panel."