Some legal experts warn that under the status quo – four Republican appointees and three Democratic appointees among active judges – Obama’s plan to bypass a deeply partisan Congress to address climate change using existing authorities will not be easy.
“There is really no moving forward with regulation without going to the DC Circuit and the decision of the court could really have major consequences,” said Michael Livermore, executive director of the Institute for Policy Integrity at New York University’s law school.
The court hears all challenges to government agency regulations.
And regardless of the political balance, some warn the short-staffed court will have a hard time handling a growing case load of challenges to increasingly complex EPA regulations.
“There is a reason why there are 11 judges on that court of appeals,” said John Cruden, director of the Environmental Law Institute. “They (cases) will take longer to resolve than they are right now because they are more complicated and they require and demand a lot of attention.”…
“He (Obama) can lean as heavily as he wants on the EPA and its all for nothing if he gets the wrong panel reviewing what they do,” said Tom McGarity, a law professor at the University of Texas law school in Austin, who specializes in environmental and administrative law.