SCOTUS Nominee Merrick Garland and Environmental Regulation

Today, at a live event in the Rose Garden, President Obama nominated Merrick Garland, currently the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. Reminding everyone that “people don’t stop working during their last term,” President Obama urged Senators to act in a bipartisan fashion and move forward with nomination hearings in order to fill the vacant seat left on the Supreme Court after Justice Antonin Scalia passed away in February.

Although there is sure to be a political battle around the nomination, we look to Judge Garland’s record on environmental issues to shed some light on how the Supreme Court may handle future environmental cases, like the current challenge to the Clean Power Plan pending in the lower court.

Judge Garland’s record includes private practice as well as public service, including participation in the prosecution of the Oklahoma City Bombing suspects as well as the Unabomber case as Principal Associate Deputy Attorney General. After being appointed to the D.C. Circuit court in 1997, however, Garland heard many challenges to federal agency regulation that included challenges to the Environmental Protection Agency’s (EPA) authority, similar to the current challenges to the Clean Power Plan.

Most recently, Judge Garland was part of the 3-judge panel that upheld the Mercury Air Toxics Standard (MATS), which limits mercury pollution from coal-fired power plants – pollution that contributes to birth defects and neurological issues. Although one small part of the MATS rule was struck down in the Supreme Court, the D.C. Circuit is currently reviewing the portion struck down and the Supreme Court has refused to stay compliance with the MATS rule while the lower court is reviewing.

As we reported earlier, Scalia’s unexpected passing left a lot up for question in terms of the currently pending challenge to EPA’s Clean Power Plan. Although Judge Garland is the current chief justice of the D.C. Circuit court, which will hear oral arguments on the Clean Power Plan starting June 2nd, he is not part of the 3-judge panel set to hear those arguments. That panel consists of Judge Karen LeCraft Henderson, Judge Judith Rogers and Judge Sri Srinivasan, who was also in the running for the current Supreme Court nomination. Judge Garland’s departure from the D.C. Circuit Court would not alter its hearing in that court.

Although Judge Garland’s appointment to the federal court in the mid-1990s was delayed during a presidential election year, the main reason for that delay was not due to Judge Garland’s merits but because many Republicans did not believe an additional judge was needed in the federal courts at that time. It’s anybody’s guess as to what will happen now that President Obama has announced his candidate to replace Justice Scalia, but we will continue to monitor these events as they will affect the outcome of the Clean Power Plan and future public health and clean energy regulations.

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