Potential nominee spurned Obama admin in major enviro case

By Robin Bravender | 03/03/2016 01:13 PM EST

A judge who is reportedly under consideration for the vacant Supreme Court seat ruled against the Obama administration in a major wetlands case that’s pending before the Supreme Court.

A judge who is reportedly under consideration for the vacant Supreme Court seat ruled against the Obama administration in a major wetlands case that’s pending before the Supreme Court.

Judge Jane Kelly, 51 — appointed by President Obama to the 8th U.S. Circuit Court of Appeals in 2013 — has been the subject of White House vetting to fill the seat of the late Justice Antonin Scalia, The New York Times reported yesterday. The Iowa judge, whose chambers are in Cedar Rapids, is seen by some as a savvy political pick who could put Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) in a tough spot.

In her time on the appeals court, Kelly has handled major energy and environmental cases, and hasn’t always backed the administration.


Last April, Kelly was on a three-judge panel that sided with government challengers in a case surrounding whether federal determinations about wetlands permits can be challenged in court. An appeal in that case, Army Corps of Engineers v. Hawkes Co., is slated to be heard by the Supreme Court later this month (see related story).

In that case, the Obama administration argued that "jurisdictional determinations" from the corps about whether the Clean Water Act applies to certain wetlands cannot be challenged in court, because they don’t represent "final agency actions" that are subject to courts’ review. The peat mining company Hawkes Co. argued that landowners should be able to challenge the determinations in court if they disagree with the government’s findings.

The 8th Circuit panel — and Kelly — agreed. In her concurring opinion in the case, Kelly said whether such a decision is reviewable is a "close question" legally. Noting a previous Supreme Court ruling, she said the justices had been concerned with "just how difficult and confusing it can be for a landowner to predict whether or not his or her land falls within [Clean Water Act] jurisdiction."

In another case over U.S. EPA regulations, Kelly sided with the Obama administration.

In a recent case regarding EPA’s decision to reject Arkansas’ water quality standards, Kelly penned the majority opinion siding with agency officials over a chemical company.

In that case, El Dorado Chemical Co. v. EPA, Kelly and her colleagues found that EPA had appropriately rejected the states’ water standards and that the chemical company failed to adequately demonstrate that affected waters would be protected.

Kelly, previously assistant federal public defender for the Northern District of Iowa, became the second female judge in the 8th Circuit’s more than 120-year history when she was confirmed. The 8th Circuit serves some of the Midwest and northern Plains states, including North Dakota, South Dakota, Nebraska, Iowa and Missouri. She is a Duke University and Harvard Law School graduate and has argued numerous federal appellate cases.

Grassley has so far refused to consider or even hold hearings on an Obama nominee for the job, but he supported her nomination to the 8th Circuit just three years ago. "I am pleased to support her confirmation and urge my colleagues to join me," Grassley said in a 2013 statement.

He and other Senate Republican leaders have maintained that they won’t allow a nominee to go forward regardless of the person. "Senate Republicans will ensure the American people are not denied" the "unique and historic opportunity" to decide in the November presidential election which party chooses the next Supreme Court nominee, Grassley wrote on the SCOTUSblog website earlier this week.

Kelly’s office declined to comment on the reported vetting, and the White House press office did not respond to a request for comment. Obama has said he will soon announce his nominee.