A federal judge, described during her confirmation hearings as one of the most “radical” to ever take the bench, won’t be recusing herself in the case against the Environmental Protection Agency’s (EPA) signature global warming regulation.
Judge Nina Pillard did not participate in the D.C. Circuit Court’s decision in May to hear the legal battle over the EPA’s so-called Clean Power Plan en banc, creating the expectation she would recuse herself from oral arguments on Tuesday.
But that doesn’t seem to be the case, according to court documents. Only Circuit Court Chief Justice Merrick Garland will recuse himself Tuesday since he’s been nominated to the U.S. Supreme Court by the White House.
“This is unequivocally bad for [EPA opponents],” Brian Potts, a lawyer with Perkins Coie, told Utility Dive. “I’ve always known her to be one of the more pro-EPA judges based on her decisions and political history.”
Pillard’s decision to take the bench means there’s potential for a 5-5 deadlock in the court, though that may not be the case since there will now be six Democratic appointed judges hearing the case. Only four of the judges are Republican appointees.
President Barack Obama appointed Pillard to the D.C. Circuit Court in 2013, and she was one of the judicial appointments held up by Senate Republicans that year. She was only appointed after Senate Majority Leader Harry Reid changed nomination rules so they only require a simple majority for approval.
Critics said Pillard was “radical” and even liberals called her the “next Ruth Bader Ginsburg.” Pillard was sharply criticized by conservatives for her view on abortion. A legal scholar familiar with Pillard’s views told National Review she’s a “complete ideologue” who will “twist constitutional doctrine to suit the liberal cause du jour.”
Pillard’s joining the court tips the scales even more in favor of the EPA, which is trying to save its global warming rule from being struck down. EPA says its so-called Clean Power Plan is legal and necessary for the U.S. to show the world it’s serious about fighting global warming.
The CPP requires states to cut carbon dioxide emissions from power plants. The rule is expected to force more coal plants to shut down and effectively bans the building of new ones unless they use costly carbon capture and sequestration technology.
Pretty much every U.S. state is involved in this legal battle — 27 states are challenging the rule while 18 have filed briefs in EPA’s defense.
The CPP is the lynchpin of Obama’s global warming plan. Not only has the administration used it to assure other countries the U.S. is serious about tackling global warming, it’s also key to making sure the U.S. can even come close to reducing emissions 26 to 28 percent by 2025.
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