High-Profile Federal Appeals Court Shows Appetite for Striking Longstanding Regulations

October 15, 2012

By E. Sebastian Arduengo

One of the country’s most significant federal appeals courts has morphed into a hotbed of activist judges striking longstanding federal regulations, says columnist Steven Pearlstein. And at a time when some corporations claim they are hesitant to hire because of regulatory uncertainty.

(The U.S. Court of Appeals for the District of Columbia Circuit  is so important because it has the responsibility of reviewing most of the rules and interpretative decisions made by federal agencies in the capital. It has also been seen as the U.S. Supreme Court’s farm team, as Chief Justice Roberts and Justices Scalia, Thomas, and Ginsburg are all former D.C. circuit judges.)

For example, The Washington Post columnist Pearlstein notes that just before Labor day, Judge Brett Kavanaugh, an appointee of President George W. Bush and possible Supreme Court contender under a Republican administration, issued a ruling in Homer City Generation v. EPA. The case involved the Cross-State Air Pollution Rule, where the EPA was trying to regulate the amount of pollution states could dump on other, “downwind” states. As Pearlstein puts it, from Kavanaugh’s decision, “You’d have no idea that hundreds of dedicated, highly trained scientists, analysts and statisticians at the EPA might have spent more than a decade devoted to the extremely complex task of figuring out how much of the ozone or sulfur dioxide in the air in Rhode Island originated in Indiana.”

After spending more than 25 pages exploring how the EPA created the rule, Kavanaugh claims the agency “pursues its reading of the statutory text down the rabbit hole to a wonderland ….” His issue was that it was technically possible for states to be forced to cut more emissions than they contributed to downwind states, even though that issue was not raised on appeal, and the EPA said it was highly unlikely that such a scenario would ever develop. The decision merited a particularly harsh dissent from Judge Judith Rogers, a Clinton appointee who called the majority opinion:

[A] redesign of Congress’s vision of cooperative federalism between the States and the federal government in implementing the [Clean Air Act] based on the court’s own notions of absurdity and logic that are unsupported by a factual record, and a trampling on this court’s precedent on which the Environmental Protection Agency was entitled to rely …

This isn’t the first time Kavanaugh has written opinions that have benefited corporations either, especially at the expense of the EPA. In August, he issued a dissenting opinion in Grocery Manufacturer’s Association v. EPA,an ethanol case, where he again argued that the EPA brazenly disregarded the will of Congress. But, it’s not just environmental regulations that Judge Kavanaugh and others like him have gone after. The D.C. Circuit has recently written opinions striking down regulations that would have allowed shareholders to nominate corporate directors and called for graphic health warnings on cigarette packaging.

The EPA case provides yet another example of the vital role courts play in advancing or thwarting policy that significantly impacts the nation.

But, it’s not all bad; Kavanaugh was last featured on the ACSblog for blocking South Carolina’s voter ID law from being implemented in time for this year’s general elections. In that opinion he called the Voting Rights Act one of the most significant pieces of legislation in American history, even as right-wing media tried to tout the decision as a ringing pronouncement that the major enforcement provision of the Act needed to be done away with.

President Obama’s nomination of Caitlin Halligan for a D.C. circuit judgeship has been mired in Republican obstructionism for more than two years. More information on her nomination and other Obama judicial selections can be found at ACS’s judicial nominations project.