Observers: Judge Garland Typically Deferential to EPA

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By Rebecca Wilhelm

March 16 — Chief Judge Merrick Garland, President Barack Obama's nominee to fill the U.S. Supreme Court seat left vacant by the death of Justice Antonin Scalia, has generally been deferential to Environmental Protection Agency regulations, legal observers told Bloomberg BNA March 16.

Garland, who has been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 1997 and chief judge since 2013, has reviewed dozens of environmental law cases, including a challenge to the EPA's performance standards limiting particulate emissions from new power plants and a Commerce Clause challenge brought by a real estate developer whose construction plans were halted when the government determined that the project would jeopardize the endangered arroyo southwestern toad.

Garland, 63, also served on the panel that upheld the EPA's mercury and air toxics standards, a decision reversed by the Supreme Court in June 2015 (White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 78 ERC 1757, 2014 BL 103957 (D.C. Cir. 2014), rev'd by Michigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (2015).

“Garland has earned a well-deserved reputation as a jurist who is a complete straight-shooter, who comes to his cases, including environmental law cases without a preconception of preferred outcome,” Harvard Law professor Richard J. Lazarus told Bloomberg BNA in an e-mail.

“Given that the Justice he would be replacing, Antonin Scalia, was known for his heightened skepticism of environmental protection laws and their citizen suit enforcement, a Justice Garland would clearly make a difference for environmental law cases before the Supreme Court,” Lazarus said.

Garland Called ‘Balanced.'

Garland, nominated by Obama on March 16, is “balanced, brilliant and an excellent jurist,” Harvard Law professor Jody Freeman told Bloomberg BNA in an e-mail. “Not always siding with EPA but certainly open to the government's arguments, not ideologically opposed to regulation and prepared to grant deference where warranted.”

Garland's environmental law jurisprudence is “inextricably intertwined with his administrative law opinions,” Victor B. Flatt, a professor at the University of North Carolina at Chapel Hill School of Law, told Bloomberg BNA.

“We know that he is a stickler for exhaustion of administrative remedies,” Thomas Lorenzen, a partner at Crowell & Moring LLP, told Bloomberg BNA.

Garland wrote the majority opinion in Utility Air Regulatory Group v. EPA (UARG), in which the court held that several of the petitioners' challenges to the EPA's performance standards limiting particulate emissions from new power plants weren't properly before the court, because they had first been raised in petitions for reconsideration still pending before the EPA (Util. Air. Regulatory Group. v. EPA, 744 F.3d 741, 78 ERC 1001, 2014 BL 66673 (D.C. Cir. 2014)).

Raising Objections in Petition

“[A]lthough the filing of a petition for reconsideration does not render a Clean Air Act rule nonfinal for purposes of judicial review, the only objections that may immediately be raised upon judicial review are those that were raised during the public comment period,” Garland wrote for the court. “Objections raised for the first time in a petition for reconsideration must await EPA's action on that petition.”

The UARG opinion “is actually relevant to the current challenges to the Clean Power Plan,” Lorenzen said. “The applicability of that decision to the Clean Power Plan is going to be a significant issue. The argument in the Clean Power Plan case is that the final rule is so untethered from the proposal that requiring parties to avail themselves of that reconsideration would be fundamentally unfair and fairly unworkable.”

The Clean Power Plan (RIN 2060-AR33), which sets carbon dioxide emissions limits on the power sector in each state, is being challenged by 27 states as well as several utility and industry groups.

The Supreme Court stayed implementation of the plan Feb. 9 with Scalia's backing, four days before his sudden death at a Texas ranch. The D.C. Circuit will hear oral arguments in the case June 2. The stay will prevent the rule from going into effect until it's fully litigated, including any future appeals to the Supreme Court (West Virginia v. EPA, U.S., No. 15A773, 2/9/16).

It's not clear where Garland would come down on the Clean Power Plan, Lorenzen said. He “might have to determine the limits of his own decision” in UARG.

‘Long-Standing Commitment' to Agency Deference

Garland has generally been very deferential to the government in regulatory cases, Jonathan H. Adler, a professor at Case Western Reserve University's School of Law in Cleveland, told Bloomberg BNA.

“He is not one of the more aggressive judges in terms of the scrutiny he applies to regulatory initiatives,” Adler said. “The caveat I would give is that as an appellate judge he clearly has taken his responsibilities very seriously to follow the lead of the Supreme Court, to follow precedent closely, to not necessarily plow new ground. It’s somewhat risky to use that as a guide as how he would act as a justice because he would not face the same constraints.”

When it comes to Garland's environmental record, “the distinguishing characteristic about him is his long-standing commitment to Chevron deference, the idea that in the face of statutory ambiguity the court should defer to reasonable interpretations by implementing agencies,” Scott Fulton, president of the Environmental Law Institute, told Bloomberg BNA.

Garland Supported EPA Action

For example, in White Stallion Energy Center LLC v. EPA, the D.C. Circuit held that the EPA acted reasonably in concluding it didn't need to consider costs before deciding it was appropriate and necessary to regulate power plant mercury emissions. Garland voted with the majority.

The Supreme Court reversed the D.C. Circuit panel's decision by a vote of 5-4, Lazarus said. That suggests “a different outcome if [Garland] had been on the Court instead of Scalia.”

Garland also voted to remand the rule without vacatur after the Supreme Court held that the EPA erred by not initially considering costs. Chief Justice John Roberts Jr. recently denied a petition seeking a stay of the MATS rule while the EPA undergoes the mandated cost analysis (Michigan v. EPA, U.S., No. 15A886, 3/3/16).

Other Garland Opinions

Other notable cases in which Garland voted to uphold an EPA regulation include his majority opinions in National Association of Home Builders v. EPA, 682 F.3d 1032, 75 ERC 1232, 2012 BL 156511 (D.C. Cir. 2012), which found that the EPA didn't act arbitrarily or capriciously in revising the lead-based paint hazard abatement regulation for home renovations under the Toxic Substances Control Act, and Cement Kiln Recycling Coalition v. EPA (493 F.3d 207, 64 ERC 2025, 2007 BL 56171 (D.C. Cir. 2007), which rejected a challenge to an EPA rule regulating the burning of hazardous waste as fuel under the Resource Conservation and Recovery Act.

“He's been very strong generally for agency deference,” Flatt said. “But there were a couple of cases in the [George W.] Bush administration when he sided against the EPA.”

Writing for the majority in Sierra Club v. EPA, 356 F.3d 296, 57 ERC 1897 (D.C. Cir. 2004), Garland ordered the agency to reconsider its approval of deficient state implementation plans submitted for the Washington, D.C., ozone nonattainment area under the Clean Air Act.

‘The Taking of a Hapless Toad.'

Three of the Supreme Court's current justices—Chief Justice Roberts, Justice Clarence Thomas and Justice Ruth Bader Ginsburg—previously served on the D.C. Circuit. President George W. Bush nominated Roberts to that court in 2003, while Garland was also a judge.

Roberts's first opinion as a D.C. Circuit judge was a dissent from a decision denying a request for a rehearing en banc in an Endangered Species Act case, Adler said. Garland had written the panel opinion, which held that the government didn't violate the Commerce Clause by instructing a real estate developer to change its construction plan to protect the endangered arroyo southwestern toad (Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 56 ERC 1001 (D.C. Cir. 2003))

Roberts doubted that “regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce ... among the several States.' ” Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003)).

“People have been trying to chip away at the Endangered Species Act for years on Commerce Clause grounds,” including Chief Justice Roberts, Flatt said.

The Rancho Viejo decision “suggests that Judge Garland would likely be skeptical of constitutional challenges to broad assertions of regulatory authority,” Adler said.

Implications for Clean Power Plan

“The Garland choice also has implications for the case now before the D.C. Circuit concerning the lawfulness of the Clean Power Plan,” Lazarus said.

“If [Sri] Srinivasan had been picked, it was possible he might have dropped off the panel hearing that case, meaning a new judge would have been lotteried in,” Lazarus said. “Srinivasan also would have been recused from hearing the CPP case if the case reached the Court and he was then on it, given he voted on the stay request a few months ago.”

The fact that Srinivasan, a D.C. Circuit judge who was reportedly on Obama's Supreme Court nominee shortlist, is on the Clean Power Plan panel might have factored into the president's decision to nominate Garland instead, Adler said.

Garland doesn't present any “obvious near-term costs in terms of recusal issues in cases of importance to the administration,” Fulton said.

‘Well-Regarded in the Legal Community.'

The president's nominee is also “very well-regarded in the legal community,” Lorenzen said. “He'd be more of a centrist than Justice Scalia. He certainly believes in Chevron deference. By the same token he is a stickler for the language of statutes.”

Republicans in Congress might be willing to hold confirmation hearings given the current political situation, Lorenzen said. They might be worried that a subsequent Democratic president would choose a more liberal nominee.

“This is a consensus pick; let’s move forward,” Sen. Barbara Boxer (D-Calif.) told reporters. “I think it’s a brilliant pick given where we are right now. [Obama] wants someone who can get through this United States Senate, and he has chosen someone who is strong, who is fair, who is respected by all sides, who has shown his mettle not only as a judge but also as a prosecutor.”

In 1997, the Senate confirmed Garland to the D.C. Circuit by a 76-23 vote. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who has said his committee won't hold confirmation hearings, voted against Garland's nomination to the federal appeals court.

Republican Senators Cite Unwillingness

Other Republicans say they are still unwilling to move forward on the president's nominee.

“Before a Supreme Court justice is confirmed to a lifetime position on the bench, West Virginians and the American people should have the ability to weigh in at the ballot box this November. My position does not change with the naming of a nominee today,” Sen. Shelley Moore Capito (R-W.Va.) said in a statement.

“Anyone confirmed to the Supreme Court will play a key role in decisions on monumental issues ranging from EPA regulations that affect West Virginia’s energy sector, to immigration and Second Amendment rights. With just a few months until the election, West Virginians should have an opportunity to express their views and elect a new president who will select the Supreme Court justice,” she said.

— With assistance from Anthony Adragna

To contact the reporter on this story: Rebecca Wilhelm in Washington at rwilhelm1@bna.com

To contact the editor responsible for this story: Greg Henderson at ghenderson@bna.com