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Analysis: Obama's climate agenda may face setbacks in federal court


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(Reuters) - President Barack Obama's plan to use federal agencies, and the Environmental Protection Agency in particular, to drive his second-term climate change agenda might be in peril if he cannot fill vacant seats on the federal court that has jurisdiction over major national regulations, legal experts say.

Obama is the first full-term president in more than a half century not to have appointed a single judge to the powerful U.S. Court of Appeals for the District of Columbia Circuit.

The court, considered the second most important in the nation, decides cases challenging agency regulations such as those involving the EPA's Clean Air Act and often serves as a feeder to the Supreme Court.

New York attorney Caitlin Halligan, Obama's first nominee to fill one of four vacant seats on the 11-judge bench, announced her withdrawal on Friday after Republicans twice blocked her nomination over concerns about a 2001 case in which she represented New York state and argued that gun manufacturers had created a "public nuisance" under state law.

Obama said in a statement on Friday that he was "deeply disappointed" that a minority of senators continued to block an up-or-down vote on her nomination after two and a half years.

Meanwhile, Obama's second pick, former corporate lawyer Sri Srinivasan, will have a Senate Judiciary Committee hearing in the next few weeks after being delayed in 2012 by Republican requests for more information about his role in the settlement of a housing act case as a U.S. deputy solicitor general.

While some fault Republicans for slow-walking the appointment of judges that would shift the balance of the court to Democrat-appointed judges, others fault Obama for not taking advantage of the now-four open seats and making judicial appointments a political priority. Two of the four vacant seats have been open since Obama came into office in January 2009. The seat Halligan was nominated for has been vacant since 2005.

Some legal experts warn that under the status quo - four Republican appointees and three Democratic appointees among active judges - Obama's plan to bypass a deeply partisan Congress to address climate change using existing authorities will not be easy.

"There is really no moving forward with regulation without going to the DC Circuit and the decision of the court could really have major consequences," said Michael Livermore, executive director of the Institute for Policy Integrity at New York University's law school.



Darn those courts...

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