Garland a Sharp Turn Left from Scalia on Environmental Issues, New Research Suggests

Supreme Court nominee Merrick Garland would tilt the gridlocked court toward upholding environmental regulations, a new report from the Congressional Research Service suggests.

The nonpartisan research group looked at Garland’s record in fourteen areas of law, focusing especially on differences between the DC Circuit judge and the late Justice Antonin Scalia, whose death earlier this year set off a contentious debate over the choice of his successor. The report states that agencies defending environmental policies may find more success arguing before the Supreme Court with Garland as a justice and notes that “any such shift could be key to the outcome of major environmental law challenges,” such as a rule on the EPA’s Clean Power Plan.

The Clean Power Plan is an ambitious law initiated by the Obama administration to set the first ever national limit on how much power plants can pollute. Because of the partisan nature of environmental policy, the law has a contentious history. In February, Scalia led a narrow majority to send a case challenging the legislation back to lower courts. This prevents implementation until the legal debate is settled. The report states that any lower court decision is “highly likely to be appealed [back] to the Supreme Court,” which may soon have Garland in Scalia’s former seat.

The potential impact of Garland’s nomination on the fate of the Clean Power Plan has raised the stakes of an already-controversial confirmation process. Given Garland’s history of granting the EPA significant regulatory power, many experts suggest that he may be able to tip the Supreme Court in favor of the Clean Power Plan.

Writing that Garland is “likely to uphold the President’s signature climate initiative” given his past opinions, UCLA-based environmental law expert Ann Carlson reasons that Garland is “almost always deferential to agency interpretations of statutes, including environmental ones” and notes that “when he has not deferred to the Environmental Protection Agency he has sided with environmentalists.”

While other legal scholars are less confident in the fate of the Clean Power Plan, they generally agree that the landmark environmental law has a better chance of success with Garland on the court than with Scalia. Richard Lazarus, an environmental law specialist at Harvard, argues that “in terms of looking for someone who would give a fair hearing [to the Clean Power Plan], he’s a big shift from Scalia,” but notes that “no one would say Garland is a hardened environmentalist.”

Patrick Parenteau, the former director of the Vermont Law School's Environmental Law Center, takes a similar position, stating that while Garland is by no means a “knee-jerk or rubber stamp” for EPA policies, “the opportunity to replace Justice Scalia with a judge like Garland, who really does take a strong interest in understanding the nature of environmental problems, is a very definite benefit.”

Scalia was widely viewed as hostile towards environmental policies and his death triggered a flurry of articles about implications of the vacancy on environmental legislation. Headlines ranged from Reuters’s “Scalia's death boosts legal chances for Obama's climate plan” to US News’s “What Antonin Scalia’s Death Means for Environment and Climate” to The Atlantic’s “Will a Reconfigured Supreme Court Help Obama's Clean-Power Plan Survive?,”

It is with this curiosity and cautious optimism that many look to Garland’s environmental record.

The Congressional Research Service provides a historical foundation for these experts’ predictions by analyzing Garland’s long paper trail of relevant rulings. Their report highlights two overarching trends in Garland’s almost twenty years at the DC Circuit: he often accepts the EPA’s interpretations of disputed policies and generally supports regulations that aim to mitigate pollution or protect wilderness. The Congressional Research Service concludes that “overall, it appears that agencies defending environmental rules could find their odds somewhat more favorable” with Garland on the Supreme Court.

A recent example of Garland’s support for environmental policies is the 2015 case Michigan v. EPA, in which he voted to grant the EPA the power to regulate air pollution when “appropriate and necessary,” even if the regulations were expensive for polluting industries. However, when the case was appealed to the Supreme Court, Scalia led a 5-4 majority to reverse Garland’s decision and block the policy.

Michigan v. EPA highlights key differences between Garland and Scalia. Richard Lazarus praises Garland’s ability to give all claims a “meaningful hearing” and suggests that Scalia was much more cynical. “Given that the justice he would be replacing, Antonin Scalia, was known for his 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,” he said.

Scalia is not the only Supreme Court justice to disagree with Garland’s rulings on environmental issues. In the 2003 case Rancho Viejo, LLC v. Norton, the DC Circuit Court ruled on whether or not to prohibit a construction project that threatened the endangered arroyo southwestern toad. John Roberts, then Garland’s fellow judge on the DC Circuit Court and now chief justice of the Supreme Court, argued that the federal government’s power to regulate does not extend to the “hapless toad,” while Garland supported the ban, stating that the “construction plan was likely to jeopardize the continued existence” of the species.

When evaluating the EPA’s authority to implement various regulations, Garland generally uses the two-part “Chevron test.” This means that he first looks to Congress’s intentions for the contested policy. If they are clear, he will follow them. If not, he defaults to an agency’s interpretations as long as he considers them reasonable. Garland has used the Chevron test to defend the EPA’s decisions many times during his tenure as a DC Circuit Court judge, as when he backed a policy to regulate lead-based paint, supported a rule regarding the burning of hazardous waste, and defended the agency’s interpretation of an air quality law.

Garland has also occasionally used the Chevron test to dismiss the EPA policies; however, the report notes that when he disagrees with the EPA, it tends to be “in response to challenges from environmental groups rather than industry.” For example, in the 2006 case American Farm Bureau v. EPA, Garland rejected EPA air pollution standards that he judged not substantial enough to protect public health.

Given Garland’s history of supporting environmental regulations, the Congressional Research Service and numerous legal experts agree that the Supreme Court would be much more likely to rule in favor of policies such as the Clean Power Plan with Garland in Scalia’s former seat.

The Clean Power Plan will not be the only environmental case to reach the Supreme Court in upcoming years. In the past, the Court has had the final word on many significant issues ranging from air pollution to public land use to wildlife conservation. In considering the powerful influence of the Supreme Court over these policies—ones that affect the air we breathe, the land on which we live, and the animals that either recover or go extinct—many legal scholars consider this nomination one of great significance. Parenteau, who argues that “no [justice] has had more of a negative impact on environmental law than Justice Scalia,” suggests that Garland’s nomination presents “a huge opportunity for the environmental community to shift the balance of power on the Supreme Court.”

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