Merrick Garland on Environmental Protection: Why Advocates Are Reassured

The rulings of Obama's Supreme Court nominee position him squarely in the mainstream of environmental jurisprudence, a big shift from Scalia.

President Obama announces Judge Merrick Garland as his nominee to the U.S. Supreme Court in the White House Rose Garden on March 16, 2016. Credit: REUTERS/Kevin Lamarque

In a case that readers of judicial tea leaves are peering at closely, Judge Merrick Garland signed an opinion in 2001 that can only be summarized by a double dose of double negatives.

As ScotusBlog put it in a dense review of Garland's record published in 2010, he joined a "dissent from denial of rehearing en banc of invalidation of EPA regulations under non-delegation doctrine."

Translation: Even in a setback, Garland, a judge on the U.S. Court of Appeals for the District of Columbia and now President Obama's nominee to replace Justice Antonin Scalia on the Supreme Court, was positioning himself squarely in the mainstream of environmental law.

The appeals court's three-judge panel, the dissenters warned, had contorted an outmoded doctrine and erroneously "stripped the Environmental Protection Agency of much of its ability to implement the Clean Air Act."

Most of the judges who voted that day wanted a rehearing. That wasn't enough to force reconsideration under the appeals court's rules, but it was a sign that a three-judge panel had strayed far from the middle of the road.

And when the Supreme Court weighed in, it was Scalia himself who wrote a landmark unanimous decision agreeing with Garland and rescuing the Environmental Protection Agency's authority from the brink of unorthodoxy.

American Trucking, as the case is known, was the biggest legal victory for environmentalists and regulators in decades.

Scalia's opinion in American Trucking may be classic textualism, the practice of parsing laws for their most literal meaning, as was Scalia's wont. But it was also a devastating rejection of the nondelegation doctrine, a constitutional chestnut that polluters have repeatedly chucked at the EPA.

And that is one reason environmental lawyers are so interested in Garland's role during Trucking's twists and turns. The nondelegation doctrine is one of the legal tactics the fossil fuel industry is still relying on as it attempts to undermine President Obama's climate agenda.

American Trucking is just one case where Garland's record is reassuring to those who want to enhance the powers of environmental regulators in the face of that assault.

ScotusBlog, which reviewed him in 2010 when he was on Obama's short list for the last Supreme Court opening, said he "has strong views favoring deference to agency decisionmakers.  In a dozen close cases in which the court divided, he sided with the agency every time."

Several other Garland opinions—in dissent and in the majority—are also being parsed by environmental law scholars and analysts.

Their basic conclusion is that he falls in the mainstream, and is not unfriendly to regulators.

"He is almost always deferential to agency interpretations of statutes, including environmental ones," wrote UCLA law professor Ann Carlson. "When he has not deferred to the Environmental Protection Agency he has sided with environmentalists. And he has ruled in some significant cases that at least suggest he is likely to uphold the President's signature climate initiative, the Clean Power Plan."

To be sure, the outlook for both Garland and the climate litigation could not possibly be more complicated, either judicially or politically.

Garland is the chief judge at the United States Court of Appeals for the District of Columbia Circuit, the busiest court in the land on regulatory matters. It's the launching pad for many of the environmental cases that land at the Supreme Court, including those involving climate change.

Throughout his 19-year judicial career, Garland has been  firmly centrist  in his opinions. He's not on the three-judge panel that will decide the industry's current challenge to the Clean Power Plan; those judges will hear oral arguments this summer and probably rule in the fall. But if confirmed, Garland would have a chance to review the case next year. Until then, thanks to an unprecedented 5-4 intervention a few days before Scalia's death in January, the Supreme Court has put the clean power regulations on hold until this litigation is settled. And it all depends on whether Republicans block any nomination until after the election—and on which party wins the November election.

So those tea leaves might be better saved for  a second steeping.

Even so, noted environmental lawyers have been quick to assess Garland in generally favorable terms.

Tim McDonnell of Mother Jones quoted Richard Lazarus of Harvard, who favors the Clean Power Plan, as saying "we think we'll get a straight shot from him. He doesn't come with any inherent skepticism about the federal government overreaching. In terms of looking for someone who would give a fair hearing, he's a big shift from Scalia."

Garland's "keen interest in the science" was a good sign, Patrick Parenteau of the Vermont Law school told Matt Smith of VICE News. "He's one of the few judges that actually likes to delve into that aspect of cases," Parenteau said. "That's always a good sign in environmental cases. Justice Scalia, on the other hand, was never interested in that."

Environmental advocates would like him confirmed, even though he's no William O. Douglas. Michael Brune of the Sierra Club called him "exactly the kind of fair, even-handed, and thoughtful jurist who deserves the immediate consideration of the Senate."

In 2004, the Sierra Club was the plaintiff in another environmental case where Garland wrote a pro-green opinion, forcing the EPA under President George W. Bush to move ahead with standards controlling smog. But while he sided with the environmentalists on their main point, he rejected much of their argument on the devilish details. The Sierra Club, like other environmental groups, may be saying that he deserves a fair shot in the Senate—but they are careful not to say that he is always right.

But even when his views have been on the losing side, environmental experts say they see a green light for the EPA and Obama's climate policies.

UCLA's Carlson cites the case known as American Growers Association, in which the EPA's rules on pollution haze in national parks were overturned. Garland's dissent defended how the agency grouped "sources" of pollution as reasonable because it was cost-effective and supported by sound science, and bears on questions that will be heard again this year, she writes.

More recently, his role in litigation about EPA rules cracking down on mercury emissions from coal fired power plants produced its own implications.

This time, Garland was in the majority on an appeals panel that upheld the EPA. The Supreme Court, in another decision written by Scalia, disagreed last year on one significant question: whether the agency acted illegally by writing its rules without first conducting a timely and rigorous cost-benefit analysis. Still, most of Garland's decision was left intact, as was the regulation itself, while the EPA completes its paperwork. The net result was a win for green groups and a defeat for the coal industry, which saw many power plants shuttered because of the hard-fought rule.

None of this makes Garland a shoo-in for the Supreme Court, or guarantees a clear path ahead for Obama's climate policies. Far from it. But depending on the political climate, the mainstream of jurisprudence that is Garland's habitat may offer adequate shelter for the environmental movement in the years ahead.

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