The D.C. Circuit: Court of Appeals for Clean Air Act Rules

Robert UkeileyBy ROBERT UKEILEY

I have previously written about ensuring that fair-minded, intellectually honest judges are appointed to the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). All Clean Air Act cases involving nationwide rules automatically go to that court for review. This will include the inevitable legal challenges to the U.S. Environmental Protection Agency’s (EPA) rules on the regulation of carbon pollution from new and existing power plants.

We recently got some excellent news on this front. In December 2013 and January 2014, the U.S. Senate confirmed three new judges to the D.C. Circuit. Senate Majority Leader Harry Reid changed long-standing procedural rules to get it done, but it will likely prove to be a wise choice. The new appointees are Patricia Ann Millett, Nina Pillard and Robert L. Wilkins (the Obama Administration had earlier appointed Sri Srinivasan, confirmed in May 2013).

This means that seven of the 11 active judges were appointed by President Clinton or President Obama. We are ensured that any brazenly biased decisions on carbon pollution can be stopped by a procedure known as “en banc” review, which is when all 11 active judges can decide a case rather than the more common procedure of having a three-judge panel decide cases.

Recall that Judge Brett Kavanaugh, a President George W. Bush appointee, recently struck down the Clean Air Act Transport Rule, a decision devoid of any rational basis. In that one decision, Kavanaugh tipped the scales in favor of hundreds of gigawatts of fossil fuel plants. The case is currently on review in the Supreme Court but even if reversed, Kavanaugh’s bad decision will have caused several years of delay in the transition to clean energy.

The recent confirmations of the Obama appointee increases the likelihood that we won’t see a similar tragedy when it comes to carbon pollution rules, other important Clean Air Act rules and the proposed water and solid waste rules that apply to fossil fuel plants.

Robert Ukeiley (rukeiley@igc.org) is a lawyer who represents environmental nonprofits in Clean Air Act litigation affecting energy issues.

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