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The U.S. Climate-Change Wars Begin This Summer

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Jonathan Chait, New York Magazine

The biggest piece of President Obama’s second-term agenda is his widely expected plan for the Environmental Protection Agency to issue new carbon regulations for power plants, a move that could bring the United States in line with the greenhouse-gas-reduction goals it agreed to in Copenhagen and open the way for an international treaty to control climate change. If the administration unveils such a plan, conservatives will undoubtedly challenge its legality. The legal challenge won’t take place for two years, but the two sides are preparing for war already. The field of battle will be the Federal Appeals Court in Washington, D.C.

The D.C. Circuit, as the appeals court covering legal issues arising within the nation’s capital, has assumed a large and growing influence in the ideological wars over the scope of government, and over the last decade its appointments have provoked bitter conflict. During George W. Bush’s second term, Democratic senators filibustered D.C. circuit nominees they considered extreme, causing Republicans to threaten to eliminate the filibuster for judges. Democrats called the threat the “nuclear option,” and the two sides negotiated a resolution when Democrats backed down and agreed not to filibuster judges except in extraordinary circumstances. Bush’s judges on the D.C. Circuit haveinserted themselves even more heavily into the policy debate by striking down a slew of regulations in health care, pollution, labor, and other areas, turning the court into one of the right’s most potent weapons during the Obama era.

Since President Obama took office, four vacancies have opened on the D.C. Circuit Court, and Obama has not managed to seat a single justice to fill any of the slots. Republicans have displayed a willingness to filibuster even mainstream nominees, like Caitlin Halligan, who recently withdrew, while Obama expended little effort to resist.

The latter is rapidly changing. Obama has already nominated one judge for the court — Sri Srinivasan, a lawyer so deeply respected by both sides he sailed through the Senate Judiciary Committee by an 18-0 vote, garnering fulsome praise from Republicans and appearing to be a fait accompli. Srinivasan, when seated, would give Democrats and Republicans four seats each. The remaining question is what will become of the remaining three vacancies, which, if filled, would give Obama a commanding majority.

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