Discredited Group Opposing Merrick Garland Misrepresents His Vote On Haze Pollution Standards


discredited conservative legal group is claiming that Supreme Court nominee Merrick Garland was the sole dissenter in a 2002 D.C. Circuit Court of Appeals case “striking down” an “illegal” Environmental Protection Agency (EPA) proposal to reduce haze pollution. In reality, the other two judges on the court agreed with Garland that the EPA is required to work with states to reduce haze pollution under the Clean Air Act; they just ruled against EPA's specific approach to achieving those reductions. And a revised version of the regional haze rule is now in place.

Shortly after President Obama announced his Supreme Court nomination of Garland, who is now the chief judge of the D.C. Circuit Court of Appeals, the Judicial Crisis Network (JCN) released a statement of opposition. In its “topline points,” JCN claimed that Garland was “the only dissenter in a 2002 case striking down an illegal, job-killing EPA regulation (the 'Haze Rule').”

In order to comply with the Clean Air Act and return the country's national parks to their natural visibility, the EPA issued a proposal in 1999 to cut particulate matter and other haze-forming pollutants from nearby power plants and industrial facilities. These decades-old facilities were emitting pollutants that drifted for miles, cutting down visibility in some parks by half. The EPA has noted that the same pollution that causes haze also poses “serious health risks, especially for people with chronic respiratory diseases.” The EPA estimated the regional haze rule could result in up to $9.8 billion in annual health benefits.

In 2002, the Court of Appeals voted 2-1 to require the EPA to rework its plan for states to use the “best available retrofit technology,” or BART, to achieve their pollution reduction targets. As the Associated Press reported at the time, the majority decision “upheld the program's fundamental goal,” stating that the EPA's haze reduction plan “plainly and permissibly serves to assure the reasonable progress sought by Congress” in provisions of the Clean Air Act related to improving visibility. The AP further noted that Garland “filed a dissent, maintaining that the federal Clean Air Act expressly delegates authority to the EPA to make judgments on what steps should be required to reduce pollution.” Garland argued that the EPA's view that the Clean Air Act authorized the BART provisions was “a reasonable interpretation of the legislative language.”

Following the circuit court decision, the EPA adjusted the regional haze rule to provide a process allowing states to “consider an individual facility's contribution to regional haze when determining whether to require controls, and what the level of control should be.” The regional haze rule was finalized in 2005.

Since then, the haze rule has been upheld in multiple courts. It was contested in 2011 by Oklahoma Attorney General Scott Pruitt after the EPA rejected Oklahoma's state implementation plan and imposed a federal plan, but the 10th Circuit Court of Appeals ruled in the EPA's favor, and the U.S. Supreme Court subsequently refused to hear the case. The haze rule was later contested by the state of North Dakota, but the Court of Appeals for the 8th Circuit found in favor of the EPA. Again, the state attempted to challenge the ruling, but the appeal was rejected by the Supreme Court. And the 9th Circuit Court of Appeals upheld EPA's regional haze plan for Arizona.