Mar 17, 2016 by


CREDIT: AP Photo/Andrew Harnik

Federal appeals court judge Merrick Garland shakes hands with President Barack Obama as he is introduced as Obama’s nominee for the Supreme Court during an announcement in the Rose Garden of the White House, in Washington, Wednesday, March 16, 2016.

How do you judge a judge?

In the case of Judge Merrick Garland, who President Obama nominated for the Supreme Court on Wednesday, there is not much evidence for or against his environmental record. But as cases against the EPA’s Clean Power Plan and other regulatory actions head to the courts, it’s important to glean what we can.

By and large, Garland has a reputation for allowing agencies to do the work they set out to do — and that’s usually a good thing for the environment.

Who Is Merrick Garland?

Albert Lin, a professor at UC Davis specializing in environmental and natural resources law, clerked for Garland at the U.S. Court of Appeals for the D.C. Circuit and said the judge was thorough and open-minded.

“I don’t think he expressed a specific view towards the EPA, per se, but he recognized that government agencies have a role,” Lin told ThinkProgress. “They should have some discretion as to how they function — but he also wasn’t going to give them a free pass.”

In 1985, during his time at the Washington, D.C. firm Arnold and Porter, Garland wrote an article for the Harvard Law Review in favor of allowing agencies to have some discretion over how they carry out Congress’ intents. According to Bloomberg, Garland has practiced what he preached. On the D.C. Circuit bench, which is responsible for hearing most administrative cases, such as the recent Clean Power Plan challenge, a third of Garland’s dissents have been over challenges to agency decision-making. In all of those dissents, Garland sided with the agency.

And with a deadlocked Congress, further action on the environment is going to continue to come from executive actions intended to protect American’s air, water, and climate under existing frameworks, said Erich Pica, president of Friends of the Earth.

Bringing that to a contemporary context, in the Clean Power Plan challenge, one critical issue comes down to whether, under the Clean Air Act, the EPA has the authority to regulate carbon emissions from coal-fired power plants. In fact, there are two conflicting amendments regarding that authority on the books.

So, it’s important in this case that the the judges look not only at the Congress’ wording — which is contradictory — but at the intent of the law. This is where Garland presents a possible victory for environmentalists.

“He will not just consider the plain language, but what’s the statute trying to accomplish,” Lin said.

That means that the judge does not always side with the administration — he sides with what the law is trying to accomplish. Sometimes, that also works out for the environment.

In 2004, Garland wrote the majority opinion that ruled against the EPA’s approval of a Washington, D.C. plan to reduce smog that didn’t bring the area into compliance.

“We agree with Sierra Club’s principal contention that EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the Act requires today,” Garland wrote of the Bush-era approval.

In a 2012 case Garland again sided with an agency, that time the DEA. Although medical marijuana advocates decried the final decision, during the argument, Garland said something that might cheer environmentalists.

“Don’t we have to defer to their judgment?” Garland asked about the agency. “We’re not scientists. They are.

After years of ridiculing the conservative talking point that it’s reasonable to reject the scientific consensus around climate change because “I am not a scientist,” it’s refreshing to hear someone say, I am not a scientist, and therefore we have to listen to scientists.

Of course, there are other ways the court can influence environmental policy.

“We will see ongoing challenges to money in politics, whether it’s state ballot initiatives, redistricting — there is a whole slew of things that are electorally related that will undoubtedly make their way up to the Supreme Court,” Pica said. Having an Obama-appointed justice “gives us some hope that the Supreme Court can undo some of those terrible rulings that were championed by Scalia on the conservative side of the bench.”

As news hit of Garland’s nomination Wednesday, environmental groups called for the Senate to go forward with the confirmation process — something GOP leadership has pledged not to do.

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