Why the next president’s judicial appointments will impact climate action

A nerd question for all the policy nerds out there: What did the Obama administration’s groundbreaking climate regulation for the nation’s power plants – the Clean Power Plan – and the Trump administration’s milder alternative – the Affordable Clean Energy Rule – have in common?

Both were seen as profound industry-changing regulations. Both were praised by some and despised by others.

And neither of them came into force.

“Basically, any environmental rule of any size will be challenged in court,” says Lisa Heinzerling, a law professor at Georgetown University and senior adviser to former President Barack Obama’s Environmental Protection Agency (EPA). “The courts have the final say.”

As President Biden and former President Donald Trump vie for second terms in arguably one of the hottest years in history, NPR’s Climate Desk looks at both candidates’ records on climate change and what to expect if either is elected. Trump promises to “drill, baby, drill” and loosen regulations on oil and gas production. Biden promises to create more jobs by transitioning energy away from climate-warming fossil fuels.

But given the contentious nature of environmental law and recent U.S. Supreme Court decisions, particularly one limiting the power of federal agencies, legal experts say the judicial appointments made by the two candidates will be of paramount importance for climate.

The president has the power to appoint federal judges for life, not just to the Supreme Court but also to federal appeals and district courts, which hear tens of thousands of cases each year. Subject to Senate approval, these appointments shape the nation’s judicial system and the government’s ability to enforce laws for decades to come.

“Almost all environmental cases ultimately end up in an appeals court,” says Jeff Holmstead, an attorney with Bracewell LLC who worked on air pollution control measures at the EPA under former President George W. Bush.

Biden has appointed 201 judges, including one to the Supreme Court. Trump appointed 234, including three to the Supreme Court. This gives conservatives a 6-3 majority on the highest court in the country.

Since then, the Supreme Court has repeatedly denied agencies the ability to cut climate-warming emissions, protect the nation’s wetlands and ephemeral waters, and limit air pollution in the states downwind of power plants and factories.

“I think it’s clearer than ever that people who believe fervently that we should protect public health from environmental harm really can’t make progress if they face a hostile judiciary,” said Cara Horowitz, executive director of the Emmett Institute on Climate Change and the Environment at the UCLA School of Law. “The job becomes much harder when at the end of every litigation sits a Supreme Court that is hostile to the administrative state and environmental regulation.”

The Supreme Court’s recent decision could have a significant impact on climate regulation

For the past 40 years, the American judicial system has had a presumption that when a law is ambiguous, courts should rely on the expertise of the federal agency responsible for enforcing the law, as long as the implementation was reasonable.

In other words, when a law like the Clean Air Act is ambiguous, courts rely on experts and scientists at federal agencies like the EPA to fill in the gaps when drafting regulations and implementing laws.

In its last term, the conservative majority of the Supreme Court has passed the so-called Chevron Respect in a ruling on two related cases. Chief Justice John Roberts wrote for the majority that “courts must use their independent judgment to determine whether an agency acted within the scope of its statutory authority.”

Legal experts say the decision could affect the government’s ability to regulate food, drugs, telecommunications and workplace safety, among other things. But the impact is particularly severe for environmental protections, because the Clean Air Act, the Clean Water Act and the Endangered Species Act were all written in deliberately vague terms to prevent future problems.

“Many of these laws were passed in the 1970s, when we were just beginning to understand various environmental problems. When Congress wrote these laws, it gave agencies broad authority to consider the best available science,” said Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center. “And the best available science evolves over time.”

Scientists’ knowledge of emerging environmental problems such as climate change, PFAS and plastic pollution is constantly evolving, and governments have a role to play in protecting people from these problems through existing laws.

“So when the Supreme Court justices say we’re going to freeze everything as we knew it in the 1970s, they’re basically saying that the agencies are not accountable to the science, they can’t adapt to the science, they can’t protect the public’s interests,” Schlenker-Goodrich said.

Supporters of the Supreme Court’s decision argue Chevron This reluctance gave the federal authorities too much power.

“The fact that a law is silent on an issue does not mean that Congress intended to allow the agency to interpret it however it wants,” Holmstead said.

The agency’s lawyers “are behaving like any other lawyer,” said Damien Schiff, an environmental lawyer with the Pacific Legal Foundation, a conservative public interest legal group. “They’re just advocates articulating an opinion, but it’s not necessarily privileged in terms of its accuracy or appropriateness just because it’s articulated by a government agency.”

Schiff, whose law firm had filed an amicus curiae brief calling for the end of Chevronsaid the change was part of a broader shift in the court’s legal thinking that could help left-wing and right-wing groups by “making it easier for private citizens to enforce their rights against government agencies.”

JJ Apodaca, executive director of the Amphibian and Reptile Conservancy, said the change means decisions will no longer rely on federal scientists “with doctorates and master’s degrees” but will now be made by judges “who have political affiliations and, in many cases, have not taken a science or biology class since high school.”

The policy of the judiciary

An impartial judiciary has been a cornerstone of American democracy since its founding.

During Trump’s tenure, the Supreme Court became the most conservative in over 90 years. At the same time, the Republican leadership was able to place over 230 additional judges on federal district and appeals courts, who, according to Heinzerling, “make the majority of federal legal decisions in this country.”

Earlier this year, a federal appeals court ended a long-running legal battle by young Oregon plaintiffs who argued that the U.S. government’s contribution to climate change violated their constitutional rights. In 2022, a U.S. district court restored endangered species protections for gray wolves in 44 states.

These lower courts often get the benefit of the doubt, Heinzerling said. “That means they can have a big impact on what the regulatory landscape looks like.”

In his first campaign, Trump promised to appoint judges modeled on the late conservative Justice Antonin Scalia. Three-quarters of his appointees were men and about 84 percent were white, according to the Pew Research Center. An analysis by The Washington Post In May, it emerged that Biden has appointed more non-white federal judges than any other president in history, nearly two-thirds of whom are women.

“When he talks about rights and freedoms, (Biden) knows that those rights and freedoms are ultimately decided by federal judges. So the makeup of the federal judiciary is intertwined with everything else we do,” former White House Chief of Staff Ron Klain told NPR last year.

Biden has less influence over the composition of the Supreme Court, filling only one vacancy in his first term – that of Justice Ketanji Brown Jackson – and legal experts say it is unlikely he will be able to change that vacancy in his second term. The court’s two oldest justices, Clarence Thomas and Samuel Alito, are both conservative and unlikely to retire if Biden is re-elected. If Trump wins in November, critics fear he could replace both with younger justices, locking in the court’s conservative majority for decades to come.

Regardless of who wins, legal experts say the Supreme Court’s recent decisions will make it harder for the federal government to address environmental problems like climate change unless Congress passes new laws.

“(Chevron) is making it harder for agencies to use old laws to address new problems,” said Sam Sankar, senior vice president of programs at environmental firm Earthjustice. “But that doesn’t mean we can’t address the threats posed by climate change, and we will. The problems are getting so bad that Congress, even the right wing, needs to start responding to these things in federal legislation.”

“The question is,” he added, “how much are we losing and how much is it costing us to address the problems we have?”

Copyright: NPR