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EPA chief confirmed. Are three key judicial nominees next?

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Cally Carswell | Jul 23, 2013 05:00 AM

Gina McCarthy must have been exhausted last week when she completed her 136-day slog down the path of most resistance – also known as the U.S. Congress – to the helm of the U.S. Environmental Protection Agency. It was the most drawn-out battle over a nominee for EPA's top job ever. But it had little to do with McCarthy herself, who has worked as a state-level environmental regulator under five Republican governors to much praise, and has a reputation for working well with both environmentalists and industry. The fight was rooted in ideological opposition among certain Republicans to an EPA they see as overly aggressive and hostile toward industry and economic growth. In the end, only six Senate Republicans voted in favor of McCarthy’s nomination, including both senators from Arizona, though others admitted she was qualified for the post. Even Oklahoma Sen. Jim Inhofe, perhaps the most high-profile climate skeptic in public office, said that he “could work with her.” (Nevertheless, he voted against giving her the job.)

Gina McCarthy, right, with former EPA administrator Carol Browner, celebrating McCarthy's confirmation.
Now, as Time senior editor Bryan Walsh points out, the really hard part begins for McCarthy. She's saddled with the "toughest job in D.C." -- namely, developing and implementing carbon pollution limits for existing power plants, circumventing a Congress that failed to do so themselves.

Which brings us to three more key nominees who may become similarly mired in a political spitting match having nothing to do with their own bonafides, or lack thereof. Whether Republican senators block these nominations, or allow the up-or-down votes that would result in confirmation, could have big consequences for EPA efforts to address climate change.

Patricia Millet, Cornelia Pillard and Robert Wilkins are President Obama's picks to fill three judicial vacancies on the D.C. Circuit Court, considered the most important federal court after the biggest legal fish, the Supreme Court. The D.C. Circuit is currently composed of four judges installed by Republican presidents and four appointed by Democratic presidents. If Millet, Pillard and Wilkins are confirmed by the Senate, the balance would tip significantly in favor of Democrats. The math is simple.

Why is that important for the EPA's climate cause? Because the D.C. Circuit hears most cases challenging rules made by federal agencies, and has jurisdiction over all of our bedrock environmental laws -- the Clean Air Act, the Clean Water Act, the Endangered Species Act. If the EPA's eventual rules restricting carbon pollution from power plants, or any other rules the agency puts in place, are challenged -- and it is very likely they will be -- the case(s) will be decided by the D.C. Circuit Court.

Of course, if Obama's nominees are blocked, it doesn't mean carbon regulation is doomed. But it does mean the agency will head to court a bit less confident. The D.C. Circuit's recent environmental rulings are a mixed bag. The court struck down the EPA's effort to regulate air pollution that originates in one state but sullies the air in another. Then again, a three-judge panel that included David Sentelle, who Legal Planet calls "the most right-wing judge on the circuit," unanimously upheld EPA's authority to regulate carbon emissions under the Clean Air Act. That could bode well for future climate cases involving the Clean Air Act. Or, since we don't know what legal intricacies those cases will turn on, maybe not.

Cally Carswell is HCN's assistant editor. She tweets @callycarswell.

Steve Snyder
Steve Snyder
Jul 23, 2013 10:00 AM
Having your own boss undercut your agency's original positions and timetables don't make your job as "the toughest job in DC" easier.
Blanchard B Weber
Blanchard B Weber Subscriber
Jul 24, 2013 11:06 AM
Steve, while your comment is correct and to the point, some of this undercutting is to be expected. While McCarthy's tasks involve substantive issues (as well as the partisan politics that complicate them), her boss's role is (unfortunately) dominated by political considerations. Conflicts here? You bet.

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