Is the D.C. Circuit a “Broken Circuit”?

Earlier this summer, the Environmental Law Institute’s Environmental Forum featured a cover story on the U.S. Court of Appeals for the D.C. Circuit by Doug Kendall and Simon Lazarus of the Constitutional Accountability Center entitled “Broken Circuit.”  As the sub-head promised, this article made the case that “A new breed of activism on the Court of Appeals for the D.C. Circuit — for environmental cases second in importance only to the Supreme Court and the central venue for high-profile lawsuits — threatens decades of progress.”  The Forum also included my brief counterpoint essay, “The D.C. Circuit Is Hardly in Crisis.”  This short piece was intended as a response to the Kendall-Lazarus piece though, as is the Environmental Forum‘s usual practice, I had to write my piece without having seen the article to which it was responding.

The Kendall-Lazarus article makes several conventional points.  It noted that the D.C. Circuit is of particular importance in environmental law because it hears the lion’s share of challenges to federal regulatory programs.  This is both because of its location and because, under some statutes, the D.C. Circuit has special or even exclusive jurisdiction over petitions challenging agency rules.  One consequence is that the D.C. Circuit has been the locus of controversy.  Senators and activist groups tend to pay more attention to D.C. Circuit nominees than to those for other circuits.  Thus it is no surprise that the first appellate judicial nominee ever defeated by a filibuster (Miguel Estrada) was a D.C. Circuit nominee, as was one of President Obama’s nominees who Republican Senators successfully blocked.

The Kendall-Lazarus article repeats Washington Post columnist Steven Pearlstein’s charge that the D.C. Circuit is dominated by  “a new breed of activist judges [who] are waging a determined and largely successful war on federal regulatory agencies.”  This is just silly.  To support this claim, the article notes that the D.C. Circuit’s hawkish view of standing is often an obstacle to environmentalist plaintiffs who seek to challenge EPA rules and that a divided panel of the D.C. Circuit struck down the Obama EPA’s Cross-State Air Pollution Rule in EME Homer City Generation v. EPA .  Yet as the article notes, the Bush EPA had it’s cross-state rule struck down too and the EPA’s most costly and controversial rules — those applying the Clean Air Act to greenhouse gases — have sailed through the court.  Indeed, it is the very same standing rules about which Kendall and Lazarus complain that helped the EPA prevail in the challenge to its Tailoring Rule.  Industry groups have hit a standing wall in other cases as well, and the only successful challenge to an EPA greenhouse gas rule thus far was brought by environmental groups seeking more stringent regulation.  As I note in my Environmental Forum essay:

While the Obama administration has had its share of losses, the Obama EPA’s decisions have fared slightly better than those of the Bush EPA. In addition to the prior administration’s effort to address interstate air pollution, the D.C. Circuit also struck down the Bush EPA’s mercury emission regulations and efforts to reform New Source Review — all of which were lambasted by environmentalists as overly lax. At the same time, environmentalist litigants and others seeking more stringent application of the CAA have prevailed against the agency at a higher rate than those seeking regulatory relief. This is hardly what one would expect from an ideologically oriented, anti-regulatory court.

While not particularly hostile to regulation, the D.C. Circuit has a well-deserved reputation for subjecting agency action to exacting scrutiny. Much of what the D.C. Circuit does involves no more than questioning whether agency actions conform with relevant statutory requirements. In many cases, this is enough to set aside agency action. As D.C. Circuit Judge David Tatel explained in a 2009 speech to the Environmental Law Institute, “You’d be surprised how often agencies don’t seem to have given their authorizing statutes so much as a quick skim.”

Agency officials no doubt chafe against judicial review when it prevents them from adopting desired polices, but it’s a mistake to confuse active judicial review with “judicial activism” or an anti-regulatory bias.

Throw non-environmental cases into the mix, and the bottom line remains the same. Agencies tend to win in the D.C. Circuit so long as they abide by the relevant statutory limits and engage in reasoned decision-making. Yes the D.C. Circuit occasionally issues a particularly aggressive opinion (e.g. Noel Caning), but overall the Court is hardly anti-regulatory. The D.C. Circuit was not the only court to rule against the President’s recess appointments to the NLRB and, as readers may recall, the D.C. Circuit rejected constitutional challenges to the PPACA.

Since Kendall and Lazarus wrote their article, the Senate unanimously confirmed Sri Srinivasan to the D.C. Circuit, giving the court eight full-time judges — four nominated by Republicans and four nominated by Democrats — in addition to the six judges on “senior status,” all of whom continue to hear cases. President Obama has made nominations to fill the remaining three vacancies on the court, and the Senate should consider these nominations in due course, but the D.C. Circuit is hardly but understaffed. There are three dozen vacancies classified as “judicial emergencies” according to the Federal Judicial Center, seven of which are on circuit courts of appeals. None are in the D.C. Circuit, however (and only three have pending nominees). Judicial vacancies should be filled and a President’s judicial nominees should in most cases be confirmed — but the D.C. Circuit is not the court with the greatest need.  President Obama has prioritized his D.C. Circuit nominees because he’s hoping to influence the ideological orientation of that court, not to address the problem of judicial vacancies.

For more on the D.C. Circuit and its history, check out Adam White’s article in The Weekly Standard. It provides more useful background on the court and the controversy it engenders.

UPDATE: Those interested in the D.C. Circuit may also want to check out this forthcoming paper by several former D.C. Circuit clerks on the court’s unique jurisdiction and docket.