Trump Races to Pick Judges Who Oversee Environment Cases

The president’s court picks could help his climate legacy endure long after Trump leaves office

By Robin Bravender, Scott Waldman November 27, 2017

President Trump has dismissed global warming as a hoax, snubbed the Paris emissions pact and scrapped U.S. EPA climate rules.

But executive actions can be fleeting—as the Trump administration has shown by moving swiftly to unravel many of President Obama's climate change policies.

Yet there's a major piece of Trump's climate legacy that could be more enduring: his court picks. The Trump administration has acted expeditiously to fill vacancies on top courts around the country, including the Supreme Court and powerful lower courts that could decide the fate of regulatory challenges and novel lawsuits, like localities suing oil companies for damages caused by sea-level rise. Those judges could be weighing in on climate change cases long after Trump leaves 1600 Pennsylvania Ave.

Trump's judicial appointments rank "pretty high" in terms of his climate change legacy, said Glenn Sugameli, who runs the Judging the Environment project, which tracks judicial nominees' environmental records.

"They're the ones that are going to determine whether the actions taken by the Obama administration, by states and local governments are justified, are legal, are sustainable," he said. And "they're the ones that are going to decide whether the actions taken by the Trump administration are legal."

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"The reason why the courts play a big role right now is that, whether the executive branch is run by [President George W.] Bush or the executive branch is run by Obama, each time they're kind of stuck with old language," Lazarus said, noting that the 1970 Clean Air Act hasn't seen a major overhaul since 1990.

The Obama administration tried to use the existing language to support the administration's signature climate rule, the Clean Power Plan, and "you can expect that Trump judges would be more skeptical of those activities."

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Beyond challenges to federal rulemaking, many of which are resolved in the D.C. Circuit court, there are other climate lawsuits underway across the country that could ultimately be heard by Trump appointees.

In California, for example, a city and two counties are suing oil companies, arguing that the companies' greenhouse gas emissions are pushing sea levels up. In another case at a federal district court in Oregon, a group of kids is suing the federal government over its contributions to climate change.

Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, said he's also expecting to see "a lot more litigation about fossil fuel extraction, especially on federal lands and waters," as the Trump administration seeks to expand domestic energy production.

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"What's interesting here is that this administration is moving more aggressively and more quickly than administrations usually do at the beginning of their terms, and that may be a cause or a consequence of the fact that the administration has not been able to do much else, certainly not legislatively," he said. "There is every reason to think this will be a lasting legacy of the Trump administration, but it takes awhile for that effect to really manifest itself."

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