JudgeMerrick Garland continues to await a hearing on his to replace the lateAntonin Scalia on theU.S. Supreme Court, but a stubbornU.S. Senate is determined to run out the clock on President Barack Obama'sadministration before holding that hearing.
Inthe meantime, much attention has been given to Garland's judicial record at theU.S. Court of Appeals for the District of Columbia Circuit, and the potentialSupreme Court justice has been praised for being a meticulous and cautiousjurist who shunned engaging in judicial overreach.
Anew report from theCongressional Research Service examined Garland's previous judgments to try andgain some insight into how he may rule on certain issues in the future despitethe inevitable uncertainty in predicting a judge's future actions, even with ajudicial career as long as Garland's. The April 27 report focused on areas ofthe law in which Scalia had a heavy influence or offered a deciding vote, anddiscussed how Garland may have approached the same issue if he had been sittingon the court's bench.
TheSupreme Court has not formally reviewed any of the opinions authored by Garlandduring the nearly two decades he has sat on the D.C. Circuit. "Thissuggests that Judge Garland's opinions tend to be crafted to avoid unnecessarycontroversy that might prompt review by the High Court," the report said.
Garlandhas participated in dozens of cases involving environmental law given that mostchallenges to EPA's rules and regulations are heard in the D.C. Circuit. Unlikehis fellow D.C. Circuit judge Sri Srinivasan, who was at one time rumored to beObama's Supreme Court pick, Garland was not assigned to the panel that will hear challenges to theClean Power Plan in June. If he had been and then was confirmed to the SupremeCourt, Garland would have had to recuse himself from the Supreme Court's reviewof the rule.
Manyenvironmental cases, according to the report, tend to raise issues ofadministrative law, such as standing to sue and standards for judicial review.Garland has not always ruled in favor of environmental protections, but isgenerally viewed to be more favorable than Scalia, who expressed a degree ofskepticism about the need for some of those protections.
Accordingto some observers cited by the report, Garland has a long standing commitmentto deferring to federal agency interpretations of statutory language pursuantto what is known as granting Chevrondeference. Grounded in a 1984 case — Chevronv. Natural Resources Defense Council — involving the oil company, suchdeference is offered when the statute is ambiguous and an agency interpretationof the law is "reasonable." Chevronis cited in a number of EPA cases currently before the courts, including theClean Power Plan litigation. However, several recent high profile decisions bythe Supreme Court indicate that atleast some of the judges, including Chief Justice John Roberts and JusticesClarence Thomas, Elena Kagan, and Sonia Sotomayor, have begun to give far morescrutiny to federal agency interpretations of statutory language.
"Where[Garland] has voted to vacate or remand environmental rules on Chevron grounds, he has more often, butnot exclusively, done so in response to challenges from environmental groupsrather than industry," the report said.
Garlandalso agreed with the majority in ruling on the legal challenge to the EPA'sMercury and Air Toxics Standards, supporting the agency's interpretation of"appropriate and necessary." In a 5-4 vote, the Supreme Court in June 2015 the rule back to theD.C. Circuit in Michigan vs. EPAbased on those three words.
Courtsalso look at whether agency decisions, including those made pursuant to theClean Air Act, were made in an "arbitrary and capricious" manner.Garland has tended to defer to agencies when considering this standard ofreview, especially in highly technical matters.
Garlandwas also involved in a case referred to as Inre Aiken County, where he dissented from the panel's majority that orderedthe U.S. Nuclear Regulatory Commission to resume processing of a U.S.Department of Energy license application for the controversial and long-stalledYucca Mountain nuclear waste storage project. Garland argued that the decision would requirethe NRC to "do a useless thing," because the commission had only beenappropriated enough money to shut down the licensing activities and thereforelacked funds to continue processing the DOE's application.
"ForJudge Garland, the agency simply lacked the funds to complete the applicationprocess, and the court was inappropriately questioning the agency's view thatit simply could not 'make any meaningful progress' with the funds it currentlypossessed," the report said.
Whendefending environmental rules, the report concluded that agencies such as theEPA could find the odds tipped in their favor if Garland were to sit on theSupreme Court bench. And this could be the key to major environmental legalchallenges that eventually make their way to the high court, as the Clean PowerPlan is expected todo.