Garland pick could be good news for Clean Power Plan

By Ellen M. Gilmer, Elizabeth Harball | 03/17/2016 08:10 AM EDT

As the Obama administration and Senate Republicans man their trenches in the battle over Supreme Court nominee Merrick Garland, many lawyers, states, utilities and environmental groups are focused on a landmark regulation that hangs in the balance: the Clean Power Plan.

As the Obama administration and Senate Republicans man their trenches in the battle over Supreme Court nominee Merrick Garland, many lawyers, states, utilities and environmental groups are focused on a landmark regulation that hangs in the balance: the Clean Power Plan.

With experience in private practice, public service and as current chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, Garland’s credentials for the job are widely considered unassailable. And though his confirmation is uncertain — Republicans have vowed to wait for a nominee from the next president — many experts say Garland’s record hints at a positive view of U.S. EPA’s climate rule if he does ultimately join the high court.

"Environmentalists should be happy," UCLA School of Law professor Ann Carlson told E&E. "In several respects, I think his environmental record suggests that he’s likely to defer to EPA."


Garland, 63, joined the D.C. Circuit in 1997 after being nominated by President Clinton and confirmed by a 76-23 bipartisan vote in the Senate. He’s considered a moderate who sticks to specific facts of the cases at hand, rather than weighing broader ideology — an approach he highlighted during yesterday’s announcement at the White House.

"Fidelity to the Constitution and the law has been the cornerstone of my professional life and is the hallmark of the kind of judge I have tried to be for the past 18 years," he said during yesterday’s Rose Garden announcement, noting that federal judges must put aside personal and political views.

The Illinois native’s environmental record on the appellate court includes consideration of air quality standards, haze in national parks and EPA’s recent mercury rule, along with offshore leasing plans and various other issues (Greenwire, March 16).

Carlson says Garland’s opinions in past cases show he favors deference to agencies but will step in when he believes an agency has done a poor job of explaining its choices.

"He pretty consistently demonstrates two qualities: One is he’s very deferential to EPA, particularly when EPA is interpreting a statute or trying to apply a statute in ways that are environmentally protective," she said. "And he is willing to strike down EPA regulations when he thinks they are insufficient to public health."

In American Farm Bureau Federation v. EPA in 2009, for example, Garland rejected EPA’s decision to adopt particulate matter standards that were less stringent than its staff recommended. Garland ruled that the agency had not adequately explained why it selected standards that could harm the health of vulnerable populations.

But in several opinions, Carlson noted, he has ruled that agencies "should be afforded extreme deference" on highly scientific and technical issues.

Garland sided with EPA in the recent controversy over the agency’s mercury rule, upholding the standards for power plant emissions. The Supreme Court later rejected EPA’s cost analysis for the rule but left intact Garland’s decision to grant deference to the agency on Clean Air Act interpretations and technical determinations.

The 2002 case American Corn Growers Association v. EPA also has close parallels with the Clean Power Plan. In the regulatory dispute, the court struck down EPA’s national park haze rules, but Garland dissented in part, finding that the agency was entitled to deference in interpreting how pollution sources should be treated.

Litigation over the Clean Power Plan rests heavily on similar questions of agency deference in interpreting the Clean Air Act, as EPA and critics disagree over the interpretation of Section 111(d) of the law, along with the agency’s reliance on the "best system of emissions reduction" provision to justify its broad approach to regulating power sector pollution. The case is currently at the D.C. Circuit and is expected to make its way to the Supreme Court.

‘More in the nature of Kennedy’

Jack Lienke, senior attorney for the Institute for Policy Integrity, said he expected Garland to side with EPA on the Clean Power Plan.

"Everyone assumed [Obama] was going to appoint someone who would be more likely to side with the four liberals on the court and uphold the rule," he said.

That means projections of the Clean Power Plan’s fate at the Supreme Court remain unchanged, Lienke said, outlining three possibilities: If Garland is confirmed, the rule’s odds are promising. If the open seat stays vacant, the court will likely split, upholding the circuit court’s decision. And if a Republican wins the White House and names a new justice in time, the rule’s odds are tougher, he said.

Dorsey & Whitney attorney James Rubin said it’s difficult to pin Garland as either a liberal or an environmentalist but noted that Garland’s "centrist" position could bode well for the Clean Power Plan, at least compared with its outlook under the late Justice Antonin Scalia.

"It’s a situation where you have an agency being challenged as going too far with its authority," he said. "He would bring the court more into a balance than it had been with Scalia. He certainly will be a lot more open to the arguments of where EPA has discretion."

But, Rubin cautioned, Garland’s support for the Clean Power Plan should not be viewed as a foregone conclusion.

"He’ll probably certainly be more moderate on it than Scalia would have been, but it’s not an automatic vote for it," Rubin said. "He’s probably more in the nature of [Supreme Court Justice Anthony] Kennedy. I think the court might be in a more centrist position that it has been."

‘No point in getting too wound up’

Interest groups on either side of the Clean Power Plan debate took predictable positions following Garland’s nomination.

Environmental advocacy groups including the Natural Resources Defense Council, League of Conservation Voters and Sierra Club joined the Obama administration in calling for the Senate to consider his nomination.

"The U.S. Senate should do its job by providing the nominee a fair hearing and a timely vote — and not engage in partisan obstructionism," NRDC President Rhea Suh said in a statement.

Clean Power Plan foes, on the other hand, threw their support behind Majority Leader Mitch McConnell (R-Ky.), who has said Republicans will not hold confirmation hearings for Garland. Both the American Energy Alliance and the American Coalition for Clean Coal Electricity cited the Clean Power Plan in their opposition to the president’s move to fill the empty seat.

"President Obama is no stranger to circumventing Congress and the will of the people as most recently evidenced by his costly Power Plan," Mike Duncan, president and CEO of ACCCE, said in a statement. "Now he is once again compromising the will of Congress and the American people in a hastened effort to fill the vacancy that will ultimately determine the constitutionality of the Power Plan and a host of other challenges before the Court."

Hubbel Relat, general counsel for the American Energy Alliance, said Scalia himself would have supported Republicans’ plan to wait for a nominee from the next president.

"I think the Senate’s position on this is in line with Scalia’s legacy," he said. "He was very clear that as more and more issues are placed in the court’s docket that the people should have a choice in deciding and weighing in on the government actions that are going to directly impact their lives."

He added that he was not surprised Obama’s pick seems likely to support EPA’s rule.

"I don’t think anyone was under the pretense that Obama would nominate someone that would jeopardize his climate legacy," he said.

There was reluctance from some groups to speak directly to Garland’s record and what it might mean for the Clean Power Plan.

NRDC spokesman Jake Thompson said his organization was not yet ready to directly comment on Garland, saying in an email, "We are studying his record and may comment on another day though we haven’t set a day to do so."

Lisa Soronen, executive director of the State and Local Legal Center, which works with states and local governments on Supreme Court cases, said that while states on either side of the Clean Power Plan legal battle have good reason to be interested in Garland’s record on environmental cases, the uncertainty surrounding his appointment means "putting your bets on Merrick Garland at this point doesn’t seem like a wise idea."

"There’s no point in getting too wound up about this guy until he actually gets through," she said.

This story also appears in ClimateWire.