By the end of his presidency, Barack Obama, who had once seen in his own coming the healing of the earth and a curb on the rise of the oceans, had reason to be well pleased with his environmental record. He had not mastered the tides perhaps, but he had imposed upon the nation a climate program that touched on nearly every aspect of daily life and American commerce, from jetliner engines to UPS trucks to home appliances.
The key to Obama’s agenda was nuclear. No, not the power generating sort, but the political sort, as in the “nuclear option.” On November 21, 2013, when Harry Reid, then the Senate majority leader, executed a parliamentary maneuver that ended the minority Republicans’ ability to filibuster presidential appointments (except for those to the Supreme Court), partisan reactions were predictable. Obama praised the end of “arcane procedural tactics” that Republicans employed, he said, to harm the unemployed, immigrants, women, victims of gun violence, and the economy. Republicans mourned the end of Senate tradition.
But all the players knew that Reid’s move was largely about getting Obama nominees seated on the U.S. Court of Appeals for the D.C. Circuit. And, they knew that was really about making it easier for Obama to govern administratively through a vast array of rules, regulations, and directives.
The D.C. Circuit is second only to the Supreme Court in its power. Its principal role is to act as arbiter of the federal government, and as the size, reach, and lawmaking power of administrative agencies have grown, so has the importance of the D.C. Circuit. At the time of Reid’s parliamentary maneuver, only eight of the court’s eleven seats were filled, divided evenly between judges nominated by Republican and Democratic presidents. Republicans, fearing a court eager to abet Obama’s regulatory ambitions, were happy to leave it that way—even proposing the elimination of the court’s vacant seats. After Reid nuked the filibuster, three Obama nominees were quickly confirmed, giving Democratic appointees a seven-to-four advantage.
The Obama-Reid strategy not only made it easier for Obama to govern administratively, but it further meant that if Obama were somehow succeeded by a Republican determined to “deconstruct the administrative state” (as Donald J. Trump’s chief strategist, Steve Bannon, put it), his efforts would have to make it past a Democrat-dominated appellate court.
That fact was driven home to the Trump administration on July 3, when a three-judge panel of the D.C. Circuit ruled two-to-one against its effort to delay the implementation of an Obama-era rule. The decision, which held that Trump’s Environmental Protection Agency was wrong in delaying strict new methane-emissions standards on the oil and gas industry, confirmed some conservatives’ fears that the D.C. Circuit had become a bastion of liberal activism. “If you have a bunch of liberal judges that you’ve been able to put on the court, they’re going rule in favor of all the regulating that you want to do, and then they’re going to resist attempts to de-regulate,” said Myron Ebell, director of the Center for Energy and Environment at the libertarian-leaning Competitive Enterprise Institute.
It was the D.C. court’s first consideration of a Trump attempt to roll back one of Obama’s climate regulations. It is certain not to be the last. By the end of the president’s second term, his far-reaching climate agenda held perhaps an even bigger claim to his legacy than did health care. His boldest move, the 2015 Clean Power Plan—which would have imposed the first-ever federal limits on power plants and mandated an end to coal-powered electricity—was halted by a divided Supreme Court just a few days before Justice Antonin Scalia died in February 2016. Even so, there remained in place countless climate regulations embedded across multiple federal agencies.
Trump campaigned against Obama’s climate policy as job-killing federal overreach impeding America’s path toward energy independence. In March, he ordered federal agencies—now his agencies—to reverse or reconsider the Obama climate rules.
One such was the “methane rule,” which was to have taken effect in June. Methane is the main component of natural gas, and it is a greenhouse gas. The limitations were meant to help Obama meet his commitment to the Paris climate accord. The oil and gas industry protested that the rule was too expensive (estimated to cost around $530 million to implement by 2025), redundant (energy companies already comply with the separate emissions standards of states), and, in any event, unneeded, because the industry has every motivation to capture as much methane as possible, in order to sell it.
“This is another example of regulation that is just red tape, basically glomming on to something the industry is already doing,” says Kathleen Sgamma, president of the Western Energy Alliance, an oil and gas trade group. “We already maintain our equipment to make sure that methane leaks are at a low level…. We have a built-in financial incentive to reduce methane emissions.” Sgamma points out that, even while natural gas production has grown by more than 50 percent in recent years, companies have reduced methane emissions by 19 percent.
The court’s decision, as so often with the D.C. Circuit, turned not on the substance of the rule itself, but on a narrow matter of administrative procedure. After Trump’s head of the E.P.A., Scott Pruitt, issued a 90-day stay of the methane rule in anticipation of his agency reconsidering it as Trump had ordered, six environmental groups filed an emergency motion to force implementation. EPA lawyers argued that matter didn’t belong before the court, which only has jurisdiction over the final actions of the agency. The court agreed that it lacked jurisdiction on matters not yet final, but ruled that Pruitt’s 90-day stay had the effect of a final action—of killing off the methane rule—thus allowing the court to decide that Pruitt’s action was “arbitrary, capricious, [and] in excess of statutory … authority.”
Environmentalists cheered. “It’s a victory for Americans, it’s a victory for public health,” said Peter Zalzal, an attorney for the Environmental Defense Fund, which was a party to the case. “What it means is that there will be actions undertaken to reduce pollution, actions that are feasible, that are cost-effective, that otherwise would not have occurred. And that’s going to benefit people’s health.”
The matter is far from being decided. Even before the July decision, Pruitt had announced the EPA’s intention to issue a two-year delay in implementing the methane rule, knowing that the 90-day stay would not give the agency enough time to complete the reconsideration process. But where Pruitt had the authority under the Clean Air Act to arbitrarily order a 90-day stay (or so he thought), the two-year delay, relying on a different legal authority, would be considered a “final action” by the agency, and thus subject to a public comment period. That process is expected to be completed this summer, but even if the agency then decides to issue the delay, it will be subject to further legal challenge, which will again be decided by the D.C. Circuit Court. All the while, the reconsideration will be making its own long journey through the tortured federal rule-making process.
For now, oil and gas companies must scramble to accommodate the limitations on methane emissions even though they may well soon become irrelevant. After a plea from the Justice Department for more time to implement the methane rule, the court granted a delay of its July 3 order—but only for two weeks. “It is very awkward,” says Western Energy’s Sgamma. “Whenever a rule goes into effect, you have to comply with it—a company could be held liable. It’s just this weird in-between period, because if the two-year delay indeed is granted, then what? You comply with something for two months, or for however long it takes? It’s a very awkward time.”
The three-judge panel that made the decision represents a distillation of the bitter politics of judicial appointments that have consumed the Senate for a generation. When George W. Bush was president, it was the Democrats who employed the filibuster to block appointments, starting with Bush’s nomination in 2001 of Miguel Estrada to the D.C. Circuit. By 2005, with thwarted Bush judicial appointments piling up, then-Senate Majority Leader Bill Frist came very close to exercising the nuclear option. At the last minute, a bipartisan group led by Sen. John McCain—the Gang of 14—reached a compromise by which three of Bush’s judicial appointments were allowed votes. One of them was a California jurist named Janice Rogers Brown, who quickly gained confirmation to the D.C. Circuit.
By the time Obama became president, roles had reversed—and the Gang of 14 was mostly gone from Congress. Though pressured by progressive activists, Reid was reluctant to kill the filibuster. Then, on November 18, 2013, when Republicans blocked the confirmation to the D.C. Circuit of Robert Wilkins, Reid made up his mind. Two days later, he went nuclear.
Wilkins had a reputation as something of a social justice hero going back to his days at Harvard Law School in the 1980s, where he’d been among the leaders of a group that occupied the dean’s office demanding more minority law professors. In 1992, Wilkins, by then a public defender in D.C., was on a family trip when he was stopped by the Maryland state police, who brought in a dog to search his rental car for drugs. He sued, beginning a long piece of litigation known as the “black while driving case,” which the state eventually settled, agreeing to end its practice of racial profiling. Wilkins went on to a distinguished career as a defense lawyer, before Obama appointed him to the D.C. District Court, where he served for three years before taking his seat on the powerful D.C. Circuit in early 2014.
Of the two votes that went against the Trump Administration on July 3, one came from Judge David Tatel, a Clinton appointee. The other was cast by Wilkins. The lone dissenting vote, based on the opinion that a temporary stay was just that—temporary, and no kind of “final action”—was cast by Janice Rogers Brown.
