Nerdy question for all of you policy wonks out there: What did the Obama administration鈥檚 landmark climate regulation on the nation鈥檚 power plants 鈥� the 鈥� and the Trump administration鈥檚 more lenient replacement of it 鈥� the 鈥� have in common?
Both were seen as major industry-changing regulations. Both were lauded by some and reviled by others.
And neither went into effect.
鈥淏asically any environmental rule of any magnitude is challenged in the courts,鈥� said Lisa Heinzerling, a law professor at Georgetown University and a senior adviser to former President Barack Obama鈥檚 Environmental Protection Agency (EPA). 鈥淭he courts have the final word.鈥�
As President Biden and former President Donald Trump vie for a second term amid what鈥檚 sure to be one of the in recorded history, NPR鈥檚 Climate Desk has looked at both candidates' records on climate change and what to expect if either is elected. Trump is promising to 鈥�,鈥� and weaken regulations on oil and gas development. Biden is promising to with an energy transition away from climate-warming fossil fuels.
But given the litigious nature of environmental law and the U.S. Supreme Court鈥檚 recent decisions, particularly one of federal agencies, legal experts say one of the election鈥檚 most consequential aspects for the climate would be the judicial appointments either candidate makes.
The president has the power to nominate federal judges for lifelong terms. Not only to the Supreme Court, but also to federal appellate and district courts, which see of cases each year. Pending Senate approval, those appointments shape the country鈥檚 judiciary and the government鈥檚 ability to implement laws for decades.
"Almost all cases involving some type of environmental action ultimately go to a court of appeals," 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 justice to the Supreme Court. Trump appointed 234, including three Supreme Court justices, giving conservatives a 6-3 majority on the nation鈥檚 highest court.
Since then, the Supreme Court has ruled against agencies鈥� ability to cut , to protect the nation鈥檚 and to for states downwind of power plants and factories.
鈥淚 think it is clearer than ever that folks who believe fervently that we should protect public health from environmental harms really can鈥檛 make progress if they have a hostile judiciary waiting,鈥� said Cara Horowitz, executive director of the Emmett Institute on Climate Change and the Environment at the UCLA School of Law. 鈥淭he work becomes a lot harder when you have a Supreme Court sitting at the end of every litigation road that鈥檚 hostile to the administrative state and environmental regulations.鈥�
Recent SCOTUS decision could greatly affect climate regulation
For the , the American judicial system has operated with the understanding that if a law is ambiguous, the courts should defer to the expertise of the federal agency implementing it, as long as that implementation is reasonable.
In other words, if a law like the Clean Air Act isn鈥檛 crystal clear, the courts would defer to experts and scientists at federal agencies, like the EPA, to fill in the gaps when writing regulation and implementing laws.
In its recent term, the Supreme Court鈥檚 conservative majority threw out what鈥檚 known as the Chevron deference in a ruling on two related cases. Writing for the majority, Chief Justice John Roberts argued that 鈥渃ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.鈥�
Legal experts say the decision could affect the government鈥檚 ability to regulate food, medicine, telecommunication and worker safety, among others. But the implications for environmental regulations are particularly stark. That鈥檚 because the Clean Air Act, the Clean Water Act and the Endangered Species Act were purposely written vaguely to accommodate for future problems.
鈥淢any of these laws were passed in the 1970s when we were gaining an understanding of various environmental issues, and when Congress wrote these laws, they imparted on agencies a very capacious authority to account for the best available science,鈥� said Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center. 鈥淎nd the best available science emerges over time.鈥�
Scientists鈥� understanding of emerging environmental problems like , and is constantly evolving. Government agencies are tasked with protecting people from those problems using existing laws.
鈥淪o when Supreme Court justices are saying we鈥檙e going to freeze things as we knew them back in the 1970s, what they鈥檙e essentially saying is agencies can鈥檛 account for the science, agencies can鈥檛 adapt to the science and agencies cannot protect the public鈥檚 interest,鈥� Schlenker-Goodrich said.
Proponents of the Supreme Court鈥檚 decision argue the Chevron deference gave federal agencies too much power.
"The fact that a statute was silent on an issue doesn't mean that Congress intended to let the agency sort of read it however it wants," Holmstead said.
Agency attorneys 鈥渁re acting like anybody else鈥檚 attorneys,鈥� said Damien Schiff, a senior attorney focused on environmental law at the Pacific Legal Foundation, a conservative public interest law group. 鈥淭hey鈥檙e just simply advocates articulating a view, but it鈥檚 not necessarily privileged in terms of its accuracy or propriety just because it鈥檚 being articulated by a government agency.鈥�
Schiff, whose law firm filed calling for the end of Chevron, said the change is part of a broader shift in the court鈥檚 approach to law that could help groups on the left and those on the right, making it easier 鈥渇or private parties to try to vindicate their rights against government entities.鈥�
JJ Apodaca, executive director of the Amphibian and Reptile Conservancy, said the shift means instead of relying on federal scientists, 鈥渨ith Ph.D.s and master degrees,鈥� decisions will now be made by judges who, 鈥渉ave political affiliations and in many cases, haven鈥檛 taken a science or biology class since high school.鈥�
The politics of the judiciary
An impartial judiciary has been a cornerstone of American democracy .
Trump鈥檚 term led to the most conservative Supreme Court in , but it also allowed Republican leadership to place more than 230 other judges in federal district and appellate courts 鈥� which issue 鈥渢he bulk of the federal legal decisions in this country,鈥� Heinzerling said.
Earlier this year, a federal appeals court by young plaintiffs in Oregon who argued the U.S. government鈥檚 contribution to climate change violated their constitutional rights. In 2022, a U.S. district court to gray wolves in 44 states.
Those lower courts often get the benefit of the doubt, Heinzerling said. 鈥淲hich means they can have a huge influence on what the regulatory landscape looks like.鈥�
In his first campaign, Trump judges in the mold of the late conservative Justice Antonin Scalia. Three-quarters of his appointees were men and roughly , according to the Pew Research Center. An analysis by The Washington Post in May found that Biden has placed more non-white federal judges than . Nearly two-thirds are women.
"When he talks about rights and liberties, [Biden] knows that in the end those rights and liberties are decided by federal judges, so the makeup of the federal judiciary is connected to everything else we do," former White House chief of staff Ron Klain last year.
Biden has had less say on the makeup of the Supreme Court, filling only one opening during his first term 鈥� Justice Ketanji Brown Jackson 鈥� and legal experts say it鈥檚 unlikely he鈥檇 be able to shift it in a second term. The court鈥檚 two oldest justices, Clarence Thomas and Samuel Alito, are both conservative and unlikely to retire if Biden is reelected. If Trump wins in November, critics fear he could replace both with younger justices, locking in the court鈥檚 conservative majority for decades to come.
Regardless of who wins, legal experts say, the Supreme Court鈥檚 recent decisions will make it harder for the federal government to tackle environmental problems like climate change, barring new legislation from Congress.
鈥淸Chevron] makes it harder for agencies to use old laws to address new problems,鈥� said Sam Sankar, senior vice president for programs at the environmental firm Earthjustice. 鈥淏ut that doesn't mean that we can't address the threats of climate, and we will. Problems are getting bad enough that Congress, even the right wing, is going to start needing to react to these things in federal lawmaking.鈥�
鈥淭he question is,鈥� he added, 鈥渉ow much do we lose and how much does it cost us to try to address the problems we've got?鈥�
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