Da – Court Packing Notes

Bravender and Waldman ’17

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Court Packing DA
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Bravender and Waldman ’17 [Robin and Scott; November 27; Deputy Editor of Climate Wire, citing the head of the Judging the Environment Project and Richard Lazarus, an environmental law expert and Professor of Law at Harvard University; Award-winning reporter, M.A. in Journalism from Syracuse University; Scientific American, “Trump Races to Pick Judges Who Oversee Environment Cases,” https://www.scientificamerican.com/article/trump-races-to-pick-judges-who-oversee-environment-cases/; RP]
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."
Richard Lazarus, an environmental law expert and professor at Harvard Law School, said courts have played an "outsized role" in climate policy in recent years because regulators are working with an old law to deal with a problem its authors weren't specifically addressing.
"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."
Trump has already picked one Supreme Court justice, Neil Gorsuch, a conservative whose appointment was viewed by some as a nail in the coffin for legal efforts to preserve the Clean Power Plan. Court watchers predict Trump may make one or more additional Supreme Court nominations before his term expires.
Legal experts note that judges' opinions in environmental cases won't necessarily fall strictly along ideological lines, but that conservative judges are often more likely to reject arguments calling for more regulation or trying to fit climate change rules within the existing Clean Air Act.
Lazarus pointed to Brett Kavanaugh, a conservative judge on the U.S. Court of Appeals for the District of Columbia Circuit, as an example of a jurist who "is not ready to give EPA a lot of deference if they're taking language which was crafted at one time and trying to push it at the edges to deal with a problem of another time, like climate change." Kavanaugh, a Bush appointee who sits on the court that hears challenges to Clean Air Act rules, became known as a vocal critic of Obama EPA rules.

Finally, the impact. Domestic lawsuits will effectively enforce climate legislation AND model to the rest of the world. That prevents runaway warming, which causes extinction.

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