In March, President Barack Obama nominated Judge Merrick Garland – the chief judge of the United States Court of Appeals for the District of Columbia Circuit – as a candidate for the U.S. Supreme Court to replace Justice Antonin Scalia.
His appointment, for political reasons, ignited a firestorm of protest from Senate Republicans who have refused to consider Judge Garland for a vote. At this time, it is unlikely that Judge Garland will be confirmed before the November 2016 elections, but in the event that he is confirmed, now or in the future, it is helpful for energy producers to examine his record on energy and power production.
What can energy producers expect from a Justice Garland?
Garland Upholds MATS Rule
In April 2014, in White Stallion Energy Center, LLC v. EPA, Judge Garland joined with a fellow judge to uphold the EPA’s Mercury and Air Toxics Standards (MATS), a highly-controversial regulation that has come under attack from energy producers across the country.
Energy producers argued that the EPA should be forced to take costs into account when creating rules that impact the industry. The EPA disagreed, citing its authority to create rules that are “appropriate and necessary” when discussing issues that impact public health. Judge Garland and his colleague agreed, with the other judge on the panel dissenting.
As a result, costs were not factored into rules established by the EPA, which can be considered a loss for the energy industry. The case was later reversed and remanded by the Supreme Court in a June 2015 decision.
Rejection of Challenges to EPA’s NSPS
The EPA issued a set of standards called the New Source Performance Standards (NSPS) that cover steam-generating units. Several industry groups launched a suit against the EPA challenging the standards, which they viewed to be restrictive.
In Utility Air Regulatory Group v. EPA, Judge Garland wrote the court’s opinion that rejected these challenges, citing not an ideological reason but a technical one: “Several of the petitioners’ challenges are not properly before us because they were first raised in petitions for reconsideration that remain pending before the agency.” Thus, it is not clear what his views on NSPS are, which leaves some in the industry wary.
Garland Dismissed Appeal from Coal Plant Builder
In May 2013, Judge Garland joined with his other two colleagues in dismissing an appeal from an energy producer in its efforts to build a new coal power plant in Kansas without having to go through an environmental study.
A lower court ruled in favor of the Sierra Club regarding the club’s protest and request for an environmental impact study for the proposed 875 MW coal power plant in Holcomb, Kansas. The lower court ruled that an environmental impact study would have to be conducted by the Rural Utilities Service, a part of the U.S. Department of Agriculture, before approval could be granted to the producer.
Since then, the state of Kansas has issued approval to the provider to move forward with construction of the plant.
Environmental Groups Score Victory in Appeal
In one of his earlier rulings, Judge Garland joined the rest of the court in affirming the right of several environmental groups – led by the National Parks Conservation Association – to sue the U.S. Department of the Interior for allowing a permit for a new power plant to be constructed near Yellowstone National Park. The attorneys for the power plant producer argued that the environmental groups lacked injury or court redressability – but Judge Garland and the court said they had standing to sue.
The entire body of work for Judge Garland when it comes to energy cases is admittedly small. But, one can surmise that Judge Garland would probably join with his more liberal colleagues on the Supreme Court in upholding EPA regulations, affirming tighter restrictions on carbon emissions, and overall ensuring stricter oversight of energy production in the U.S.
Depending on who wins the presidential election in November, it is unclear if a more energy-friendly candidate for the Court will be appointed.