Last week, President Obama nominated D.C. Circuit Chief Judge Merrick Garland to the Supreme Court. Many observers noted that Judge Garland is widely admired as a “judge’s judge.” But what might that mean in the context of nuclear energy and the role of the federal government in regulating nuclear power? How might his views influence important issues such as Yucca Mountain, deference to the NRC, and environmental issues?
With those questions in mind, we took a look Judge Garland’s record in the D.C. Circuit. While not a detailed assessment of specific issues making their way through the courts, we highlight here a few aspects of his jurisprudence that may influence future decisions involving nuclear energy.
Spent fuel disposal is undoubtedly an issue of particular importance to the nuclear industry. Judge Garland was a member of the panel for In re Aiken County, in which the D.C. Circuit addressed whether the Nuclear Waste Policy Act required the NRC to continue processing DOE’s application for a spent fuel repository at Yucca Mountain despite DOE’s abandonment of the project. A majority of the court held that, in the absence of a legislative mandate, NRC was required by existing law to continue processing the application using any remaining funds.
Judge Garland dissented, stating that continuing the licensing process in the face of limited budget and no DOE support would be “a useless thing.” Judge Garland likened the decision “to little more than ordering the Commission to spend part of those funds unpacking its boxes, and the remainder packing them up again.” It is safe to say, however, from the nuclear industry’s perspective, that the Safety Evaluation Report (SER) on Yucca Mountain issued by the NRC is a useful thing, regardless of whether Yucca Mountain is ever licensed. The SER provides support for the efficacy of deep geologic disposal, and therefore provides some (however small) return on the public’s substantial investment in scientific research at Yucca. The SER also provides some measure of confidence that a repository will one day be available, bounding the NRC’s Continued Storage rule. Significantly, challenges to the Continued Storage rule are pending before the D.C. Circuit now (Judge Garland is not on the panel), creating at least the possibility that Judge Garland could be called upon in an en banc review to consider the related issues.
Judge Garland also wrote an uncontroversial opinion in NRDC v. NRC, 216 F.3d 1180 (D.C. Cir. 2000). NRDC asked the Court to vacate an NRC regulation that defined the term “meeting” under the Government in the Sunshine Act. The Act requires that “meetings” of members of certain agencies be open to the public. NRDC argued that the regulation was improper because it failed to provide procedural safeguards necessary to facilitate effective relief in the event that a meeting is improperly closed to the public. The court denied the petition for review. The court held that NRDC’s arguments conflicted with the Supreme Court’s admonition in Vermont Yankee that courts should not impose non-statutory procedural requirements on agency decision-making. This case doesn’t tell us much, but is at least consistent with the prevailing view of Judge Garland’s “judicial restraint” – his reluctance to upend settled issues without good reason.
More broadly, Judge Garland has a strong track record favoring deference to agencies, such as the NRC. His decisions deferring to agencies include writing and joining opinions that uphold agency regulations and orders, as well as authoring dissents where the majority overturned agency decisions. The opinions are consistent across the range of government agencies, from the NLRB to Department of Defense activities to the EPA. There does not appear to be an obvious public interest or pro-industry bent to his decisions. In environmental cases, for example, Judge Garland has sided with both environmental and industry groups. His judicial philosophy in this regard again is generally one of judicial restraint – not one involving an ideological or political point of view.
One interesting case involved a Commerce Clause challenge to the Endangered Species Act (ESA). In Rancho Viejo v. Norton, Judge Garland wrote the opinion upholding application of the ESA to the development at issue. Then-Circuit Judge Roberts dissented from the denial of rehearing en banc in the case, noting famously that the decision means that “regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce among several States.’” The Commerce Clause is the basis for much environmental regulation, including efforts to regulate air pollution and carbon emissions. So, the dispute could be especially critical to the energy industry should Judge Garland be confirmed to the Supreme Court.
In the face of Republican opposition to a confirmation hearing, it remains to be seen whether Judge Garland’s nomination to the Supreme Court will itself turn out to be a “useless thing” or whether he and Chief Justice Roberts will get the opportunity to work through their respective views on the Commerce Clause. If the latter, the “hapless toad” might turn out to be a prince – at least for those who favor a broad view of the Commerce Clause and the permissible scope of federal regulation.