National Public Radio (NPR) recently recycled a false narrative fueled by right-wing media that the powerful U.S. Court of Appeals for the D.C. Circuit neutrally reviews regulatory agencies. But NPR fails to mention that the court, which hears appeals on environmental, health, safety, and other regulations, is dominated by conservative judges, and is under increasing criticism for substituting its ideological opinions for scientific and technical expertise.
In an article detailing the difficulties the next president would encounter if he sought to take "a hard right turn on an environmental rule," NPR downplayed the D.C. Circuit court's importance and ideological composition. The article uncritically presented the conservative perspective that "strict constructionist" judges would prevent a weakening of bipartisan environmental law in such a scenario:
"If you take a hard right turn on an environmental rule -- or for that matter, a hard left turn -- you've got strict constructionist judges who are going to say no, and they're on the federal courts today," says Kevin Book, director of ClearView Energy Partners, a Washington-based energy consulting firm.
Book says the federal judges who oversee EPA rules most likely would prevent big changes, regardless of who wins the election.
That's because the pollution rules at the center of this debate aren't just ideas Obama and his EPA came up with. They can be decades in the making or ordered by the federal courts. They're called for in environmental laws passed by bipartisan majorities in Congress -- laws such as the Clean Air Act, which was first signed by President Nixon and strengthened by the first President Bush, both Republicans.
As described by federal courts expert Professor Carl Tobias of the University of Richmond School of Law, the D.C. Circuit court is known as the "second most important court" in the country not only because it is often the last word on appeals from federal administrative agency determinations, but because its judges are often nominated to the U.S. Supreme Court. Its prominence is one reason it is currently suffering three vacancies, despite the Obama administration's attempts to appoint qualified jurists to a court whose Republican-appointed members outnumber their Democratic counterparts 5 to 3.
The NPR article fails to recognize that this federal court has demonstrated a clear preference for crafting "hard right" policy that defers to business interests, regardless of the bipartisan pedigree of legislation before it. Indeed, The Wall Street Journal's Law Blog has described the D.C. court's view of the Environmental Protection Agency (EPA) as consistent with that of the broader anti-environmental movement, where "[t]he EPA...is a frequent bête noire for conservatives, who feel the agency is strangling industry with excessive regulation." The editorial page of the WSJ, for example, praised a recent opinion that struck down the Cross-State Air Pollution Rule, which it referred to as "another illegal Obama regulation." The op-ed went on to celebrate that:
According to a scoreboard by the American Action Forum, Tuesday's rebuke from the D.C. Circuit marks the 15th time that a federal court has struck down an Obama regulation, and the sixth smack-down for the Obama EPA. This tally counts legally flawed rules as well as misguided EPA disapprovals of actions by particular states.
Unlike the recent coverage in NPR, other media outlets have increasingly noted the ideological bent of this court willing to substitute its scientific and technical analysis for that of the experts. For example, Floyd Norris, The New York Times' chief financial correspondent, has reported on how the D.C. court has stuck down many of the new rules promulgated to prevent a recurrence of the recent financial meltdown:
[The D.C. Circuit Court] may yet be the institution that dooms many or even most of the Dodd-Frank financial reforms that Congress passed in 2010 and that regulatory agencies have been struggling to put in place since then.
In the area of regulatory law, that court, the United States Court of Appeals for the District of Columbia, reigns supreme, and it is now controlled by judicial activists who seem quite willing to negate, on technical grounds, any regulations they do not like. The Securities and Exchange Commission has suffered a series of defeats there, defeats that it has chosen to accept rather than risk an appeal to the Supreme Court.
And Steven Pearlstein, The Washington Post's business and economics columnist, explicitly attributes the recent decision striking down the Cross-State Air Pollution Rule to tea party politics, consistent with the D.C. court's pro-business tilt:
The dirty little secret is that dysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can't accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?
Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.
The prospect that some balance might be restored to the nation's second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit. The only hope now is that Chief Judge David Sentelle and some of the court's more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.
The EPA recently appealed the D.C. Circuit's recent pollution decision arguing the court had "developed 'regulatory policy out of whole cloth' in violation of their role of review." Media outlets should note this trend when evaluating whether "hard right" environmental policies can pass judicial review. This frame buys into the conservative myth of a "monster" regulatory state and misses the bigger picture: the D.C. Circuit is crafting "hard right" regulatory policy on its own.