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Garland Would Bring Rare Environmental Chops as Attorney General

Jan. 7, 2021, 5:25 PM

Judge Merrick Garland would bring an uncommon level of environmental law expertise to the Justice Department’s top spot if confirmed as attorney general in the incoming Biden administration.

The former Supreme Court pick, whom President-elect Joe Biden plans to nominate as attorney general, has helped decide the fate of dozens of federal air, water, and energy policies in more than two decades as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. That bench carries a heavy load of environmental cases.

Previous attorney general picks from Democratic and Republican administrations had “nothing comparable on environmental and administrative law” on their resumes, Case Western Reserve University law professor Jonathan H. Adler said of Garland’s experience.

It’s unclear exactly how Garland’s environmental law chops would come into play as attorney general. The Justice Department’s leader typically handles big-picture issues and leaves environmental litigation specifics to a division devoted to the issue.

But Biden plans to prioritize climate action throughout the executive branch. His campaign has committed to revamping parts of DOJ with that goal in mind, and some environmental advocates are already pressuring Garland for follow-through

What’s the AG’s Role in Environmental Law?

DOJ’s Environment and Natural Resources Division, led by an assistant attorney general, handles nearly all environmental law issues that reach the Justice Department, enforcing federal statutes and defending agency actions in court.

But the attorney general oversees the division and referees any disputes it has with other parts of the executive branch, including the White House Council on Environmental Quality and the Environmental Protection Agency.

Garland’s D.C. Circuit experience will be an asset as the Biden administration pursues an ambitious environmental agenda and works to unwind Trump-era moves, said Benjamin Driscoll, head of the judiciary program at the League of Conservation Voters.

“With the number of environmental cases they hear, it really puts him in a unique position to understand what kind of cases are going to withstand scrutiny at the D.C. Circuit and more broadly,” he said.

What Environmental Issues Will Garland Face?

Garland would helm the Justice Department during a transformative time. The agency is poised not only to shed Trump-era priorities, but also to move in a drastically different direction in nearly every policy area.

On the campaign trail, Biden promised big changes to how DOJ approaches enforcement and environmental justice issues. He committed to ramping up criminal prosecutions against polluters, creating a new Environmental and Climate Justice Division, and supporting climate litigation against the oil industry.

Some environmental advocates are already airing skepticism about Garland, citing his centrist reputation. Folabi Olagbaju, director of Greenpeace’s democracy campaign, issued a statement Wednesday, saying “It remains to be seen if Merrick Garland’s middle-of-the-road approach will be sufficient in this time of reckoning.”

Others are more enthusiastic.

“Judge Garland has shown a relentless commitment to justice throughout his career,” said Sam Sankar, a senior vice president at Earthjustice. “We are confident he will ensure that the Justice Department renews its commitment to ensuring that the federal government follows the law, and enforcing the law, on behalf of everyone in the country.”

What’s His Environmental Track Record?

Garland’s record as a judge provides extensive insight into his views on environmental regulation and agency authority. The D.C. Circuit hears an oversize load of environmental cases. Provisions of the Clean Air Act, Endangered Species Act, Safe Drinking Water Act, and other statutes give it exclusive jurisdiction over certain challenges arising under those laws.

Driscoll said Garland “often but not always ruled in favor of environmental groups,” but consistently took an in-depth look at the complexities of cases involving the Environmental Protection Agency, the Federal Energy Regulatory Commission, and other agencies.

Garland has often backed environmental regulations by relying on a legal standard known as Chevron—a longstanding doctrine, criticized by many conservatives, that gives agencies broad deference to interpret murky laws. In White Stallion Energy Center v. EPA in 2014, for example, he joined colleagues in upholding Obama-era standards for mercury and air toxics from power plants, citing ambiguous Clean Air Act language on pollutants.

Garland used the same doctrine in a 2002 dissent in American Growers Association v. EPA, arguing that the EPA reasonably justified its anti-haze standards for national parks.

“There’s nothing in Garland’s record that suggests environmental groups should be concerned,” Case Western’s Adler said. “He might be a little more risk-averse than some in the environmental community might prefer. But given the current Supreme Court, you probably want someone who’s more risk-averse because you want to win.”

What’s Next for the D.C. Circuit?

As attorney general nominee, Garland is expected to sit out pending cases as the D.C. Circuit, including some environmental disputes argued in recent months.

Those include a challenge to EPA efficiency standards for truck trailers and a National Environmental Policy Act dispute involving the Interior Department.

If the Senate confirms Garland, Biden could appoint a new, presumably younger, judge on the D.C. Circuit. One name circulating for the role is Judge Ketanji Brown Jackson from the U.S. District Court for the District of Columbia.

A district court judge since 2013 and nearly 20 years younger than Garland,, she’s heard recent environmental cases involving air pollution, Superfund sites, and President Donald Trump’s U.S.-Mexico border wall.

—With assistance from Jennifer Hijazi.

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

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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