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Biden Has Chance to Boost Leftward Tilt on D.C. Circuit (1)

Feb. 12, 2021, 7:24 PM; Updated: Feb. 12, 2021, 8:42 PM

President Joe Biden has an opportunity to shape one of the most important federal courts for environmental policy and other regulations after Judge David S. Tatel announced plans to take senior status.

Tatel, who notified the president of his plans on Thursday, has served on the U.S. Court of Appeals for the District of Columbia Circuit for nearly three decades, providing a reliable vote for environmental interests in cases involving anti-pollution laws.

Legal observers consider the D.C. Circuit the most important federal court for energy and environmental issues, as provisions of the Clean Air Act, Endangered Species Act, Safe Drinking Water Act, and other statutes funnel legal challenges there. The court has also heard major challenges involving net neutrality, presidential records, and other high-profile policy issues.

Tatel’s plan to take senior status—a form of semi-retirement—allows Biden to fill his seat on the powerful court and reinforce its reputation as a generally favorable venue for environmental interests. The president’s nomination of D.C. Circuit Judge Merrick Garland for attorney general creates a separate opening on the court if Garland is confirmed.

Environmental advocates say they’ll push Biden to nominate replacements with a background in public service or from underrepresented demographics. Tatel was a civil rights lawyer earlier in his career.

“We’ll be looking for someone who has shown through their professional and personal experience an understanding of the disparate impacts that climate and environmental harms have,” said Ben Driscoll, head of the judiciary program at the League of Conservation Voters.

In a Thursday letter to Biden, who led the Senate Judiciary Committee when Tatel was confirmed, the judge said he wouldn’t move to senior status until his successor is confirmed.

‘Intellectual Firepower’

Former President Bill Clinton nominated Tatel to the bench in 1994, so Biden’s pick to replace him won’t change the court’s current balance of four appointees from Republican presidents, and seven appointees from Democratic presidents.

But with Tatel expected to continue hearing cases as a senior judge, there’s a greater likelihood of environmental litigants drawing a favorable three-judge panel, Case Western Reserve University’s Jonathan H. Adler said. Garland’s anticipated departure and Tatel’s move to senior status will also change the overall dynamic of the bench, he said.

“They could bring a lot of intellectual firepower to bear in individual cases, and they had the ability to influence and persuade their colleagues,” Adler said in an email. “One question will be whether their replacements share these qualities and are able to play a similar role.”

Biden is likely to appoint judges who are deferential to agency power, including in cases involving the Environmental Protection Agency’s regulatory authority, UCLA law professor Sean Hecht said.

That bodes well for the Biden administration as it aims to craft ambitious climate policies, said Greenberg Traurig LLP’s Paul M. Seby, an industry lawyer who often argues environmental cases in the appeals court. He cautioned, however, that the 6-3 conservative Supreme Court might then be pressed to review more D.C. Circuit rulings.

Dakota Access, Climate

Tatel has made major contributions to environmental law in his time on the bench, recently penning opinions that upheld Obama-era protections for a marine monument and scrapped Trump-era constraints on advisory boards for the EPA.

Just last month, Tatel penned the unanimous opinion that said the Dakota Access pipeline was approved unlawfully—a ruling that clarified an important precedent under the National Environmental Policy Act.

He’s had powerful dissents, too. In 2005, he disagreed with two colleagues and wrote that the EPA unlawfully rejected pleas to regulate greenhouse gas emissions. The case then went to the U.S. Supreme Court, which reversed Tatel’s colleagues and issued the landmark Massachusetts v. EPA ruling that now serves as the foundation of federal climate regulations.

Net Neutrality, Death Penalty

Tatel has also fielded a broad set of other high-profile legal issues during his time on the bench, beyond just environment.

He’s had an influential role in court fights over net neutrality, the principle that internet service providers like AT&T Inc. and Comcast Corp. should treat all internet traffic that flows over their networks equally. Tatel co-wrote a landmark 2016 opinion upholding net neutrality regulations.

During the Trump administration, Tatel wrote an opinion upholding a subpoena ordering the president’s accountants to hand over his financial records to Congress.

He also penned a decision rejecting a challenge to the White House’s alleged use of self-deleting message apps in violation of records-preservation law, and dissented when the court paved the way for the Justice Department to resume federal executions.

—With assistance from Madison Alder, Jon Reid, and Andrew Harris.

(Adds detail on other cases in fourth section.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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