Supreme Court

Greenwire's Bravender discusses mercury stay request, Obama nominee discord

All eyes are on the Supreme Court this week as President Obama weighs options for his pick to replace the late Justice Antonin Scalia. As the debate over a nominee continues, SCOTUS is considering several major energy and environment cases. On today's The Cutting Edge, Greenwire reporter Robin Bravender discusses the future of these cases, including the request to stay U.S. EPA's mercury and air toxics rule.


Monica Trauzzi: Welcome to The Cutting Edge. All eyes on the Supreme Court this week as President Obama weighs options for his pick to replace Justice Scalia. Greenwire's Robin Bravender is here with all the latest details on the president's short list and the court's current action on energy and environment cases. Robin, news yesterday that Nevada's Republican Governor Sandoval is bowing out of consideration for a position on the high court. He was thought to be a more centrist choice. How does this change the already divisive dynamic that exists between Congress and the president over this pick?

Robin Bravender: Sandoval dropped out of the nomination process about 24 hours after it was reported that he was being vetted for the job. So that goes to show that the White House might have a really hard job finding anyone to be their nominee. President Obama has said he wants someone who's eminently qualified. He's looking at prime candidates, but it might be hard to find someone who wants to undergo this sort of political controversy. The White House is trying to move forward on this this week or next week. President Obama has said he's inviting top Senate leaders to come and talk about this. But Republicans have indicated they have no plans of budging, so it's unclear how they'll move forward.

Monica Trauzzi: Who else do we think is on the president's list?

Robin Bravender: The White House is keeping their short list pretty close to the vest at this point. A number of federal judges and Democratic politicians have been speculated to be in the running; however, as we saw with Sandoval, they might be looking for someone who's a little bit outside the box to try to get through this Republican impasse in the Senate. A number of the judges that are under consideration or rumored to be under consideration are Sri Srinivasan at the D.C. Circuit, also Merrick Garland and Patricia Millett from the D.C. Circuit. Then over at the 9th Circuit there's Paul Watford, Jacqueline Nguyen, Jane Kelly on the 8th Circuit. And some of the Democratic politicians are Attorney General Loretta Lynch and then Kamala Harris from California, but it's unclear if the White House will nominate someone from that list or someone else entirely.

Monica Trauzzi: So energy and environment issues playing big this week with the court. This week states requested the Supreme Court stay EPA's mercury and air toxics rule, and Chief Justice Roberts has asked EPA to respond to the stay request. How much of a surprise was this request on the heels of the Supreme Court granting a stay on the Clean Power Plan, and does this signal that the Clean Power Plan stay has in fact changed the game?

Robin Bravender: Not entirely a surprise. A number of people thought after the Clean Power Plan stay that challengers would be asking the Supreme Court to weigh in on any major EPA rule that was controversial just because they'd signaled that they had an appetite to do so, so in that sense not surprising. However, it is a pretty extraordinary request for the Supreme Court to step in and block a regulation that the D.C. Circuit has said they wouldn't step in to block. So we'll see what the Supreme Court does. Chief Justice Roberts could decide to block that rule on his own. If he does that, it would be hard for the liberal wing of the court to stop that from happening given that they don't have five votes on the court. They would need a majority. He could consult with his colleagues, in which case there might be a four-four split and the rule would stay in place. So we'll see what happens there. EPA is supposed to weigh in next week.

Monica Trauzzi: The court heard a major energy case as well this week, and you reported that the justices seemed skeptical about Maryland's program that gives incentives for specific power generation. What was argued in that case and sort of what signals did you see from the judges?

Robin Bravender: It's a big energy case. We're seeing Maryland is arguing that their state power incentive plan is needed to ensure that they've got the appropriate mix of power. They're backed by other states. And then on the other side is a power generator backed by the Obama administration saying that the program improperly impedes on federal regulators' turf. So the arguments were interesting there. At one point we saw Justice Sonia Sotomayor asking the challenger who's challenging the rules say, "If I'm writing this opinion knocking down this program, how exactly should I write it?" which was a pretty strong signal that the justices won't allow this program to move forward. They might -- they appeared to be looking for some ways to allow state power incentives to move forward in some ways, so they might try to find a narrow way to do that. But we'll see when they issue their opinion sometime before June.

Monica Trauzzi: All right, a lot going on. Thanks, Robin.

Robin Bravender: Thanks, Monica.

Monica Trauzzi: More Cutting Edge coming next Friday. We'll see you then.

[End of Audio]



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