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

A question for all the policy nerds out there: What do the Obama administration’s groundbreaking climate change regulation on the nation’s power plants, the Clean Power Plan, and the Trump administration’s milder version, the Affordable Clean Energy Rule, have in common?

Both were seen as major industry-changing regulations. Both were praised by some and criticized by others.

And none of them came into effect.

“Basically every environmental rule, no matter how big, is challenged in the courts,” said Lisa Heinzerling, a law professor at Georgetown University and a senior adviser to former President Barack Obama’s Environmental Protection Agency. “The courts have the final say.”

As President Biden and former President Donald Trump battle for a second term in one of the hottest years on record, 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 weaken regulations on oil and gas development. Biden promises to create more jobs by transforming energy from climate-warming fossil fuels.

But given the contentious nature of environmental law and recent U.S. Supreme Court rulings, most notably a ruling that limited the power of federal agencies, legal experts say one of the most important aspects of the election for climate will be the judicial nominations each candidate makes.

The president has the power to nominate federal judges for life terms, not just to the Supreme Court but to federal appellate and district courts, which hear tens of thousands of cases each year. Pending Senate confirmation, these nominations shape the nation’s judiciary and the government’s ability to enforce laws for decades.

People cool off in mists along the Las Vegas Strip during a deadly, record-breaking heat wave. Heat waves are becoming more intense, more frequent and longer lasting as climate change intensifies.

“Almost all cases involving some type of environmental action eventually go to an appeals court,” said Jeff Holmstead, an attorney with the law firm Bracewell LLC, who worked on air issues at the EPA under former President George W. Bush.

Biden has appointed 201 judges, including one Supreme Court justice. Trump has appointed 234, including three Supreme Court justices, giving conservatives a 6-3 majority on the nation’s highest court.

Since then, the Supreme Court has repeatedly ruled against the agency’s ability to limit greenhouse gas emissions, protect national wetlands and ephemeral streams, and curb air pollution in states downstream of power plants and factories.

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

Recent Supreme Court decision could have significant impact on climate regulation

For the past 40 years, the American judicial system has operated on the premise that when a law is ambiguous, courts should defer to the expertise and experience of the federal agency implementing that law, provided that the implementation is reasonable.

In other words, when a law like the Clean Air Act isn’t completely clear, courts look to experts and scientists at federal agencies like the EPA to fill in the gaps when writing rules and implementing the law.

In the last term, the conservative majority on the Supreme Court rejected what is known as Chevron deference in the ruling in two related cases. Writing for the majority, Chief Justice John Roberts argued that “courts must exercise their independent judgment in deciding whether an agency acted within its statutory authority.”

Legal experts say the decision could affect the government’s ability to regulate food, drugs, telecommunications and worker safety, among other things. But the implications for environmental regulation are particularly stark, because the Clean Air Act, Clean Water Act and Endangered Species Act were intentionally written vaguely to address future concerns.

“A lot of these laws were written in the 1970s when we were learning about environmental issues, and when Congress wrote them, it gave agencies very broad authority to be accountable to the best available science,” said Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center. “And the best available science comes over time.”

The Endangered Species Act, which protects threatened plants and animals like Key's deer, is more than 50 years old. Federal agencies are tasked with using old environmental laws to deal with modern problems, which drives most environmental disputes in federal courts. — The Endangered Species Act, which protects threatened plants and animals like Key’s deer, is more than 50 years old. Federal agencies are tasked with using old environmental laws to deal with modern problems, which drives most environmental disputes in federal courts.

Scientists’ understanding of emerging environmental issues like climate change, PFAS, and plastic pollution is constantly evolving. Government agencies are tasked with protecting people from these issues through existing regulations.

“So when the Supreme Court justices say we’re going to freeze everything like it was in the 1970s, what they’re saying is that agencies can’t take science into account, they can’t adapt to science, and they can’t protect the public interest,” Schlenker-Goodrich said.

Supporters of the Supreme Court decision argue that Chevron deference gave federal agencies too much power.

“The fact that the statute did not address any issue does not mean that Congress intended to allow the agency to interpret it any way it wanted,” Holmstead said.

Agency lawyers “are behaving like anyone else’s lawyers,” said Damien Schiff, a senior environmental lawyer at the Pacific Legal Foundation, a conservative public interest law group. “They’re simply advocates expressing a view, but it’s not necessarily privileged in terms of accuracy or correctness just because it’s expressed by a government agency.”

Schiff, whose law firm filed an amicus curiae brief calling for the proceedings to be terminated Chevronsaid the change is part of a broader shift in the court’s approach to the law that could help left-wing and right-wing groups by making it easier for “private entities to pursue their rights against government entities.”

JJ Apodaca, executive director of the Amphibian and Reptile Conservancy, said the change means that instead of relying on federal scientists “with Ph.D.s and master’s degrees,” decisions will now be made by judges who “have political connections and in many cases haven’t had a science or biology class since high school.”

The Obama-Biden administration has tried to use the Clean Air Act to limit greenhouse gas emissions from the country’s power plants, but their efforts have been stalled or blocked by courts.

Judiciary Policy

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

Trump’s tenure created the most conservative Supreme Court in more than 90 years, but it also allowed Republican leaders to put more than 230 other judges on federal district and appellate courts, which issue “the majority of federal legal decisions in this country,” Heinzerling said.

Earlier this year, a federal appeals court ended a long-running lawsuit 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. “Which means they can have a huge impact on what the regulatory landscape looks like.”

In his first campaign, Trump promised to appoint judges in the mold of the late conservative Justice Antonin Scalia. Three-quarters of his nominees are men, and about 84% are white, according to the Pew Research Center. An analysis by The Washington Post In May, it emerged that Biden had appointed more nonwhite federal judges than any other president in history. Nearly two-thirds of them are women.

“When he talks about rights and freedoms, (Biden) knows that ultimately those rights and freedoms are decided by federal judges, so the composition of the federal judiciary is tied to everything we do,” former White House chief of staff Ron Klain told NPR last year.

Biden has had less influence over the Supreme Court’s makeup, filling just one vacancy in his first term — Justice Ketanja Brown Jackson — and legal experts say he’s unlikely to be able to change that in a second term. The court’s two most senior justices, Clarence Thomas and Samuel Alito, are conservatives and unlikely to retire if Biden is reelected. If Trump wins in November, critics worry he could replace both with younger justices, securing a conservative majority on the court for decades to come.

Regardless of who wins, legal experts say recent Supreme Court rulings will make it harder for the federal government to address environmental issues like climate change by preventing Congress from passing new regulations.

“(Chevron) is making it harder for agencies to use old laws to solve new problems,” said Sam Sankar, senior vice president of programs at environmental law firm Earthjustice. “But that doesn’t mean we can’t address climate threats, and we will. The problems are getting serious enough that Congress, even the right, is going to have to address these things in federal legislation.”

“The question is,” he added, “how much do we lose and how much does it cost us to try to solve the problems we have?”