Merrick Garland is Good News for the Clean Power Plan

By: Marc Z. Goldgrub, Cleantech Law Partners

According to Harvard Environmental Law Professor Richard Lazarus, President Obama’s Supreme Court pick, Federal Court of Appeals Judge Merrick Garland, is highly respected in the environmental law community, and likely to give the Environmental Protection Agency’s recently-stayed Clean Power Plan rule “a fair hearing” if confirmed. UCLA Environmental Law Professor Ann Carlson even calls him “a good bet” to uphold the rule.

Carlson and SCOTUSblog contributor Tom Goldstein note that while conservative-minded on some issues, and widely considered a centrist, Garland’s environmental case judgments tend to favor EPA agency deference in cases of industry challenge. In fact, Garland generally leans in favor of agency deference, though he is most willing to stray from this in cases of environmental groups challenging agency action. For example, in American Farm Bureau Federation v. EPA (2009), he rejected the EPA’s judgment on a rule regarding particulate matter standards because the science suggested the rule’s standards could harm public health.

In the Clean Power Plan case, and other likely EPA climate rule challenges under a future Clinton or Sanders administration, an additional Justice on the Supreme Court favorably disposed to agency deference increases the rules’ chances of survival. A Democratic administration would in turn find itself with greater leeway to act on climate through EPA rulemaking.

A graduate of Harvard College and Harvard Law School, Garland served as a judge on the D.C. Circuit Federal Court of Appeals for 16 years before being named its Chief Judge in 2013. Considering his impeccable resume and lack of ideological bent, commentators point to Garland’s nomination as a shrewd move by Obama to embarrass Republicans opposed to confirming any Supreme Court pick until after the next election. Garland’s nomination also forces Republicans to assess the risk of accepting a practical moderate now, versus being forced to accept a more ideological leftist nominee if the next President is a Democrat.