Judge Garland's Environmental Decisions

Date01 July 2016
Judge Garland’s
Environmental Decisions
by Barry Kellman
Barry Kellman is Professor of Law at DePaul University College of Law.
udge Merrick Garland’s nomination to the U.S.
Supreme Court raises a question for environmental
lawyers: W hat perspectives and predilections with
regard to environmental litigation would he bring to
the Court? is Comment reects on Judge Garland’s
environmental law opinions in the U.S. Court of Appeals
for the District of Columbia (D.C.) Circuit: his opinions
for the court, his dissents, a nd his concurrences. I focus
on eight cases that inform consideration of how deferen-
tial a Justice Garland might be to the U.S. Environmental
Protection Agency (EPA) as well a s other federal agencies,
and whether he is more or less sympathetic to the claims of
environmental advocates than industry interests.
e takeaway here is not obvious. ere is not a repeated
theme that Judge Garland propounds. e view that he
is very deferential to executive agencies can be supported
with some of his decisions, but there are a number of cases
where he has voted against EPA.
Perhaps the rst notable aspect of Judge Garland’s ser-
vice on the D.C. Circuit—the court that probably issues
more environmental law decisions than any other court in
the nation—is his relatively sparse participation in notable
environmental disputes that have occupied this court’s
attention in the past two decades.1 I identied about 50
1. e only Garland-authored decision to be considered by the Supreme Court
(which reversed and remanded it) was    
EPA, 748 F.3d 1222, 44 ELR 20088 (D.C. Cir. 2014) (opinion by Judge Ju-
dith Rogers, Judge Garland concurring, Judge Brett Kavanaugh dissenting
in part), rev’d, Michigan v. EPA, 135 S. Ct. 2699, 576 U.S. 14, 192 L. Ed.
2d 674, 45 ELR 20124 (2015) (discussed in detail below). Under the Clean
Air Act alone, it is relatively easy to string-cite a dozen controversial, promi-
nent cases in which Judge Garland did not participate. Indeed, the cases he
did not participate in could ll a CAA curriculum in any environmental law
course. I provide a few examples here, marking with an asterisk the decisions
in which certiorari was granted and the Supreme Court ultimately resolved
the dispute: *Texas v. EPA, 726 F.3d 180, 43 ELR 20170 (D.C. Cir. 2013);
*Coalition for Responsible Regulation v. EPA, 684 F.3d 102, 42 ELR 20141
(D.C. Cir. 2012); *EME Homer City Generation, LP v. EPA, 696 F.3d 7,
42 ELR 20177 (D.C. Cir. 2012); New Jersey v. EPA, 517 F.3d 574, 38 ELR
20046 (D.C. Cir. 2008); North Carolina v. EPA, 531 F.3d 896, 38 ELR
20172 (D.C. Cir. 2008); *South Coast Air Quality Mgmt. Dist. v. EPA,
472 F.3d 882, 37 ELR 20003 (D.C. Cir. 2006); *Massachusetts v. EPA, 415
environmental decisions in which Judge Garland par-
ticipated, including 10 of his majority opinions (most of
which were unanimous) and two dissents. In the rest, the
opinion was either per curiam or written by one of Judge
Garland’s colleagues. By any measure of the number of
environmental law cases that have come through t he D.C.
Circuit, this is on the low side of written decisions and cer-
tainly of controversy. It appears that there has been a lot of
environmental law swirling around Judge Garland, and he
has participated in some signicant cases, but the quantity
of his environmental jurisprudence to examine is less, per-
haps, than some of his colleagues.
Also notable is the overwhelming preponderance of
Clean Air Act (CA A)2 litigation relative to other environ-
mental statutes. In part, this reects the court’s docket, but
the comparative rarity of a Judge Garla nd opinion or even
participation in cases involving the National Environmen-
tal Policy Act (NEPA)3 or the Clea n Water Act (CWA)4
is noteworthy. C ertainly, the D.C. Circuit hears diverse
environmental disputes about other statutes, but Judge
Garland’s environmental jurisprudence is substantially
concentrated on the CAA.
e cases that I examine fall neatly into two substantive
categories. In the rst are cha llenges to EPA’s authority to
set pollution control standards under various sections of
the CA A and other environmental statutes. In the second
are challenges to how an agency, typically EPA, authorizes
private activity. Challenges brought by industry against
EPA tend (though not exclusively) to comprise the rst
category. Challenges brought by environmental advocates
tend (again, not exclusively) to comprise the second. A rea-
son to distinguish these categories with regard to Judge
Garland is that he is more deferential to EPA in the rst
category of cases, and not so deferential in the second cat-
F.3d 50, 35 ELR 20148 (D.C. Cir. 2005); *Utility Air Regulatory Grp. v.
EPA, 320 F.3d 272, 33 ELR 20159 (D.C. Cir. 2003); Sierra Club v. EPA,
294 F.3d 155, 32 ELR 20760 (D.C. Cir. 2002); Appalachian Power Co. v.
EPA, 249 F.3d 1032, 31 ELR 20635 (D.C. Cir. 2001); *American Trucking
Ass’ns v. EPA, 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999); and Ameri-and Ameri-
can Lung Ass’n v. EPA, 134 F.3d 388, 28 ELR 20481 (D.C. Cir. 1998).
2. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
3. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.
4. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.
       
       
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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