The appeals court has 11 active judges, of whom seven were
appointed by Democratic presidents and four by Republicans. Four of
the Democratic appointments were made by Obama over the past 13
Though there's no guarantee judges vote along party lines, the
court's composition makes it more likely the regulations would face
sympathetic judges in a likely court challenge.
The U.S. Court of Appeals for the District of Columbia Circuit,
often referred to as the country’s second most powerful court, hears
most major regulatory cases including those made against air
And although losing parties can appeal to the Supreme Court, the
high court's nine justices rarely review the D.C. Circuit’s
Cases are heard by three-judge panels, though the losing party can
ask the full bench to overturn their decision.
The panels are picked randomly and include not just the court's 11
active judges but also six judges who have taken senior status,
meaning they can choose to take a lighter workload. Five of the six
are Republican appointees but their influence is limited because
only the 11 active judges can vote on whether to consider
overturning decisions made by three-judge panels.
Announced by the White House on Monday, the proposed rules call for
a 30 percent reduction in greenhouse gas emissions from existing
power plants, including coal-fired facilities, under the federal
Clean Air Act.
Once finalized in 2015, the regulations are likely to face legal
challenges from the coal industry, manufacturers, some utilities and
conservative-leaning U.S. states. Republicans and Democrats from
coal-producing states already have criticized the proposal.
Their legal arguments could focus on whether the government
overstepped its authority under the Clean Air Act by, among other
things, giving states considerable flexibility over how they achieve
the targets. Lawyers could also argue the EPA has not followed the
correct process in weighing the scientific justification for the
ACCUSED OF STACKING THE DECK
At the time Obama sought to fill the four vacancies on the court,
Republicans objected. Senator Mike Lee of Utah said in a July 2013
congressional hearing that Obama was trying to "stack the deck to
his advantage" with an eye on legal challenges to regulations.
Even before Obama's appointments, the court was relatively receptive
to the EPA. Under laws that determine how courts weigh regulations,
judges are required to give substantial deference to an agency's
findings and not substitute their own policy preferences for the
“Normally the agency’s views hold sway,” said Sean Donahue, a lawyer
who has experience challenging EPA rules that environmentalists
The U.S. Senate confirmed Obama’s first nominee, Sri Srinivasan, in
May 2013. Republican resistance to further nominees was overcome
when Democratic Senate Majority Leader Harry Reid of Nevada made a
change to Senate rules in November of 2013. Three more nominees –
Robert Wilkins, Nina Pillard and Patricia Millett – were
subsequently confirmed by January 2014.
[to top of second column]
The D.C. Circuit has long been a political football with senators
holding up nominations by presidents of the opposing party.
The EPA has a winning record before the appeals court of late. In
this calendar year it has won 8 and lost 2 Clean Air Act cases, some
brought by environmental groups and some by industry. The vote
breakdown varies, with both Republican and Democratic appointees
backing the agency in the bulk of cases.
Significantly, the court upheld in April a regulation that would
limit emissions of mercury and other hazardous pollutants mainly
from coal-fired power plants. The panel was split 2-1, with two
Democratic appointees in the majority and a Republican appointee in
The agency won its most important victory of recent years in June
2012 when a three-judge panel of the appeals court that included a
Republican-appointee, Judge David Sentelle, and two Democratic
appointees upheld the Obama administration's first wave of
greenhouse gas regulations.
In October 2013, the Supreme Court declined to review most of the
legal claims industry groups made against those greenhouse gas
rules, although it did agree to consider one narrow slice. A ruling
in that case is expected before the end of June.
In April, the Supreme Court handed another win to the EPA by
reversing an August 2012 appeals court ruling that struck down an
air pollution rule that regulates pollution that crosses state
lines. The appeals court decision, made before any of Obama's
appointments were made, came from a panel that consisted of two
Republican appointees in the majority and one Democratic appointee,
Before this year, the last major Clean Air Act case at the Supreme
Court was seven years ago. That was Massachusetts v. EPA, a landmark
case in which the justices ruled for the first time that carbon was
a pollutant that the EPA could regulate.
(Reporting by Lawrence Hurley; Editing by Howard Goller, Amy Stevens
and Martin Howell)
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