with Alexandra Ellerbeck

President-elect Joe Biden's pick for attorney general, U.S. Appeals Court Judge Merrick B. Garland, is set to bring deep expertise on environmental law to the Justice Department.

Garland is best known for having his nomination to the Supreme Court shot down by Senate Republicans during President Barack Obama's last year in office. But he is also well versed on the nation's major anti-pollution laws as the chief justice of the federal court second only to the high court in matters of environmental law. 

If confirmed, he will inherit a department that critics, including Biden, say has curtailed prosecution of polluters under President Trump. The former vice president campaigned on increasing enforcement of Clean Air Act violations and other laws. 

Biden's choice of Garland, announced Wednesday, was overshadowed by the attacks on the Capitol by a pro-Trump mob.

Garland often sides with stronger environmental regulations. 

Garland has heard his fair share of cases between industry and environmentalists, having served for more than two decades on the U.S. Court of Appeals for the District of Columbia Circuit. The court has a heavy caseload of Clean Air Act and other environmental work.

“In part this reflects the view of Congress that these laws are so complicated that it is best left to one U.S. Court of Appeals to develop expertise with these laws,” said Robert Percival, professor and director of the environmental law program at the University of Maryland School of Law.

Early in his court tenure, Garland voted to reconsider a case invalidating the Environmental Protection Agency's program for curbing pollution from ozone and particulate matter, both linked to lung disease and other illnesses. The case made its way to the Supreme Court, which upheld the agency's authority to regulate the pollutants.

Garland also wrote an opinion upholding the constitutionality of the Endangered Species Act and ruled in favor of the Sierra Club when it challenged the George W. Bush administration's decision to defer enforcing ozone standards in the Washington area. 

“He has as a judge shown a willingness to defer to environmental agencies' legal and scientific judgments,” said Lisa Heinzerling, a law professor at Georgetown University. “I hope he'll continue that practice as attorney general, especially if the agencies are trying to respond aggressively and creatively to our severe environmental problems.”

As the Biden administration restores safeguards and cuts emissions, Garland also will make sure the Environmental Protection Agency and other offices dot their i's and cross their t's when shifting policies, according to Columbia Law School professor Michael Gerrard. 

Over the past four years, judges have repeatedly rebuked the Trump administration officials for failing to follow the rules for writing regulations under the Administrative Procedure Act. Gerrard doesn't expect the same sloppiness under Biden. 

“No one knows the Administrative Procedure Act better than judges of the D.C. Circuit,” Gerrard said.

Biden wants to beef up prosecution of polluters.

One of the first items on his campaign plan for confronting the disproportionate influence pollution has on poor and minority communities is to establish a new Environmental and Climate Justice Division in the Justice Department and to press for legislation to hold corporate executives personally accountable for environmental degradation. 

Since winning the election, Biden has not yet named  anyone to run the new division. Nor has he picked the head of the agency's existing Environment and Natural Resources Division.

Jamal Raad, campaign director at the green group Evergreen Action, urged the Biden administration to change the department's historic underinvestment in the enforcement of environmental laws.

“The Department of Justice can become a powerful climate agency through strict enforcement of laws already on the books,” he said.

Widely regarded as a competent moderate, Garland should have an easy time getting approved, especially after Democrats took a narrow majority in the Senate with the twin wins in the Georgia runoff election. Garland was confirmed for his current seat by a 76-to-23 vote in 1997. 

Thermometer

2020 tied with 2016 for the warmest year on record.

The record, based on data from the Copernicus Climate Change Service, a program of the European Commission, caps off the warmest decade ever recorded, our colleague Andrew Freedman writes. Each of the past six years has been hotter than any other recorded before 2015, in temperature records dating to the 19th century.

This year’s record is particularly alarming to climate scientists: Although 2016’s record temperatures were aided by the largely natural climate cyclone known as El Niño, which raises surface temperatures in the Pacific Ocean, this past year saw a La Niña phenomenon, which generally contributes to cooler ocean temperatures. 

“If one pictures global warming as a car rolling down a hill, El Niño acts as a gas pedal, speeding the descent, whereas La Niña serves as a modest application of the brakes,” Freedman writes. “What’s happening now, scientists say, is that even La Niña years are setting global temperature records, due to the overpowering influence of human-caused warming from decades of greenhouse gas emissions.”

Women and minorities in weather and climate fields are confronting harassment and lack of inclusion.

Women and minorities in the earth and atmospheric sciences are pushing professional scientific societies to confront institutional discrimination, Kay Nolan writes for The Post. Some of the impacts of that movement will be reflected when the American Meteorological Society (AMS) convenes virtually this week and hosts its second symposium on diversity, equity and inclusion.

Both the AMS and the American Geophysical Union have held workshops and crafted sanctions for unprofessional conduct and discrimination, as the #MeToo movement and Black Lives Matter have pushed issues of diversity, inclusion and harassment to the forefront. Still, some professional society leaders continue to grapple with how to confront complaints that don’t reach the level of criminal behavior.

Power plays

The Supreme Court agreed to hear a case on biofuel waivers.

The court said it would review a lower-court ruling that limited the Environmental Protection Agency’s purview to exempt small refineries from biofuel requirements. “The decision came after appeals by refining companies that argued the 10th Circuit Court’s decision last year had improperly deprived them of a method to avoid financial hardship granted by Congress,” Reuters writes.

The Renewable Fuel Standard sets requirements for the amount of ethanol or other biofuels that refineries must blend into their oil, but the EPA has generally allowed small refineries that might face significant financial stress from the requirements to appeal for waivers.

Last January, the 10th Circuit Court put the wavier program in question when it held that the EPA could only grant the exemptions for small refineries to those that had received them continuously since 2010. 

Gwich'in leaders pressured Alaska to reconsider Arctic leases.

Members of the Gwich’in Steering Committee, an indigenous group formed to protect the Arctic National Wildlife Refuge, urged the Alaska Industrial Development and Export Authority (AIDEA) to reverse course on oil and gas leases in the refuge in a meeting with the agency’s executive director, Alan Weitzner. The AIDEA, a state agency charged with providing financing and investment to spur economic growth, was the main bidder in a lease sale held Wednesday, putting up 9 of the 11 winning bids. The agency can sell or give the leases to oil companies.

The Gwich’in people rely on caribou herds that migrate through the refuge and consider the land sacred.

We let them know that our way of life is not negotiable, and that we wanted to know how they intend to include Indigenous voices, and protect Indigenous ways of life and values,” Bernadette Demientieff, executive director of the Gwich’in Steering Committee, said in a statement about the meeting with the AIDEA.

Environmental groups sued the U.S. Forest Service.

A group of nine environmental groups, represented by the Southern Environmental Law Center, filed a lawsuit challenging a Trump administration rollback of protections for national forests, the Roanoke Times reports. The administration finalized new rules in November that allow the service to exempt more projects from the requirements of the National Environmental Policy Act. The lawsuit claims that the rule changes will hurt transparency and weaken environmental reviews, opening up more commercial logging in southern Appalachian forests.  

Conservation news

Many conservationists welcomed a spike in hunting during the pandemic.

Hunting was part of a broader surge in interest in outdoor recreation amid the pandemic, with states reporting a sharp increase in the number of people seeking first-time hunting licenses, Stateline reports.

“For decades, the number of hunters — who are mostly older, White males — has steadily dwindled. That’s led to a loss of conservation funding at state wildlife agencies, which largely rely on license sales to support their budgets. But, unexpectedly, officials in nearly every state have reported a moderate-to-massive spike in hunting in 2020,” Brown writes. 

Some states reported a sharp increase in young, first-time and female hunters, groups that hunting advocates have been trying to attract for years.

Extra mileage

What to look forward (and up) to in 2021.

The coronavirus pandemic continues to put many social plans on hold, but at least we'll have the night sky, our colleague Matthew Cappucci reports. The first of these, on Feb. 11, will see Venus and Jupiter in conjunction just above the horizon in the early morning hours. About a month later, it will possible to see Mercury, Saturn and Jupiter together in the night sky, along with a crescent moon.

The year will also see four supermoons, a nonscientific term used to describe a visually striking phenomenon when the full moon is closer than average in its orbit around the Earth. On May 26, a total lunar eclipse will coincide with that month's supermoon and be visible for much of the United States. Far fewer people, however, are expected to catch December's full solar eclipse, given that the path of totality is in Antarctica.