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Supreme Court fights have long been dominated by hot-button issues like abortion, crime, and civil rights. This time, environmental issues may be getting their moment on the battlefield.
With the centerpiece of US climate policy up for the court's eventual review, President Barack Obama has nominated federal appellate judge Merrick Garland for the Supreme Court seat left vacant by February's death of Justice Antonin Scalia. The pick is a shot across the bow of Senate Republicans, whose leaders have vowed to deny any Obama nominee a hearing.
Garland is currently the chief judge for the US Circuit Court of Appeals in the District of Columbia — where much of what the federal government does gets litigated. That means he's had to weigh in on environmental issues before, and he's shown "a keen interest in the science" behind those cases, Vermont Law School Professor Patrick Parenteau said.
"He's one of the few judges that actually likes to delve into that aspect of cases," Parenteau said. "That's always a good sign in environmental cases. Justice Scalia, on the other hand, was never interested in that."
Garland has sided with regulators in some key cases in the past, including a 2014 case upholding tough Environmental Protection Agency (EPA) restrictions on mercury emissions from power plants. He's generally willing to support regulators when their rulemaking appears to be based on the goals laid out in a law, Parenteau said — but he's also tossed out cases filed by environmentalists when he's found they have no legal standing to sue.
"He's curious, thoughtful, and smart enough to get to the heart of what the environmental problem is that he agencies are trying to address," Parenteau said, but "He's not knee-jerk or rubber stamp."
By comparison, Scalia was the court's conservative soul and an acerbic critic of government regulation. In dissenting from the 2007 case that allowed the EPA to regulate planet-warming carbon dioxide emissions, he complained that the EPA's definition of a "pollutant" would give it the power to restrict "everything airborne, from Frisbees to flatulence."
Just days before Scalia's death in February, the court halted the implementation of the Obama administration's Clean Power Plan, which is being challenged by more than two dozen states. The plan seeks to cut carbon emissions from electrical plants by about a third, and it's a key pillar of the US pledge to reduce carbon emissions in December's Paris climate pact.
Scalia was the key vote in the 5-4 decision to grant a stay. The court will eventually have to decide whether those regulations will go forward — and Garland's past rulings suggest he'd be more favorable toward the EPA than Scalia "if he gets confirmed, which is a huge if."
Green groups haven't been major combatants in previous nomination struggles. But this time, several leading voices are weighing in.
The League of Conservation Voters has called on its 1.3 million members to demand Senate Majority Leader Mitch McConnell, R-Kentucky, give Garland a hearing and a vote, said Tiernan Sittenfeld, the group's senior vice president for government affairs.
"From clean air to clean water, it is clear that the courts have a tremendously important role to play," Sittenfeld said. "That's why LCV intends to engage in this judicial nomination process more vigorously than we ever have before."
Sittenfeld said Garland is "impeccably qualified, and we want the Senate to stop obstructing and start doing its job."
"He seems to be someone who believes that laws exist to protect the rights of ordinary Americans, including their right to clean air," she said.
A phalanx of environmentalists took aim at Senate Republicans after Obama announced Garland's nomination Wednesday. Tom Steyer, the billionaire renewable energy booster, said the judge deserves a vote, "and any obstruction of the Constitutional process is simply unacceptable."
"The American people have rejected this obstruction: polling shows 63 percent think the nominee should get a hearing," Steyer said in a statement from his environmental advocacy group, NextGen Climate. "The crucial issues that hang in the balance before the Court, including the fate of climate policy and the Clean Power Plan, deserve to be heard by a full Supreme Court."
Earthjustice President Trip Van Noppen also weighed in, arguing that if senators block Garland, "the Supreme Court will be crippled for at least two terms, and a grossly irresponsible precedent will have been set." And the Environmental Defense Fund said the court will play a "critical role" in deciding whether the world can tackle its most serious problems.
"So it is vitally important that Justices respect the rule of law and faithfully carry out these safeguards to ensure clean air, a safe climate and clean water for all Americans, as the Court has in repeatedly affirming EPA's responsibility to protect human health and the environment from climate pollution under the Clean Air Act," the EDF said.
Parenteau said the public hasn't typically weighed environmental issues in Supreme Court fight s— but he said the issues at stake in the Clean Power Plan "changed the game."
"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," he said. "It's a huge opportunity for the environmental community to shift the balance of power on the Supreme Court in these close cases, and a lot of these environmental cases are close cases."
Follow Matt Smith on Twitter: @mattsmithatl