Opponents of the Environmental Protection Agency’s far-reaching climate rules are urging Senate Republicans to oppose the president’s nomination of Judge Merrick Garland to the Supreme Court, which could upset the balance at the high court in favor of the Obama climate agenda.
“Despite today’s nomination, we continue to be part of the chorus of voices who believe American voters, not a lame duck president with a history of executive overreach, should decide who will fill the vacant Supreme Court seat,” said Mike Duncan, president and CEO of the pro-coal American Coalition for Clean Coal Electricity, which supports the Supreme Court’s recent stay of the Clean Power Plan, the centerpiece of the president’s climate agenda.
Duncan, like many Republicans, argues that the president is attempting to stack the deck in his favor by nominating a new justice to replace the late Antonin Scalia before a new president is elected.
“Given the split of the court, the power to decide who fills the vacancy should be made after the electoral dust settles and the people have spoken,” Duncan said soon after it was reported that Garland was the president’s high court pick. “We urge the Senate to continue to stand their ground to protect the best interest of their constituents and the Constitution.”
The last decision Scalia made before his unexpected death was to agree with 30 states asking the court to halt the Clean Power Plan in a 5-4 decision, allowing the D.C. Circuit Court of Appeals — where Garland is chief judge — to decide on the merits of a major lawsuit. Those states and other groups argue that the Clean Power Plan is illegal under the Clean Air Act.
The stay will remain in place until all litigation is heard, including petitions to the Supreme Court, which are likely to follow no matter which way the appeals court rules.
“President Obama is no stranger to circumventing Congress and the will of the people as most recently evidenced by his costly Power Plan, which the Supreme Court has stayed due to valid legal challenges,” Duncan said. “Now he is once again compromising the will of Congress and the American people in a hastened effort to fill the vacancy that will ultimately determine the constitutionality of the Power Plan and a host of other challenges before the court.”
Garland has been lenient with the EPA on its power plant rules. In one of the last EPA cases he presided over in the appeals court, Garland sided with the agency in denying petitioners’ arguments that the court vacate costly mercury and air pollutant rules for power plants.
At Dec. 4 oral arguments on the mercury rule, Garland told a lawyer representing states in asking the court to vacate the rule, that the bulk of the utility industry says it would be disruptive “if we were to do anything more than remand” the rule back to EPA so it could do a cost assessment.
Other judges hearing oral arguments appeared to share Garland’s concerns that killing the Mercury and Air Toxics Standards for power plants would be premature.
The appeals court also decided against staying the Clean Power Plan in a more recent decision. It did, however, agree to an expedited briefing schedule, which states opposing the plan say is favorable. Garland is generally considered moderate and fair.
Nevertheless, Juanita Duggan, CEO of the National Federation of Independent Business, said the opposite. “Judge Garland has an extensive record, and based on our initial examination we have grave concerns,” especially when it comes to the EPA.
“A cursory examination of his record points to a judge who nearly always sides with regulators, labor unions and trial lawyers at the expense of small businesses,” Duggan said. “Small business has been under heavy pressure from the EPA … and the rest of the alphabet soup of regulators that have expanded their power over the private sector.”
The appeals court will hold two days of oral arguments on the Clean Power Plan in early June. The EPA is slated to submit a response brief in the case at the end of the month, laying out aspects of its defense.
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- On March 18, 2016