Earth Day “ha[s] been perverted to make it, in too many cases, a threat to individual liberty and property rights.”
Damien Schiff, Nominated in 2017 to the Court of Federal Claims by Donald Trump
Forty-eight years ago this Sunday, Senator Gaylord Nelson (D-WI) founded Earth Day. Every year since, as many as 1 billion people in 192 countries around the world take the day to plant trees, clean up litter, and help beautify neighborhood parks. In fact, it is reportedly the largest civic-focused day of action in the world. On Earth Day last year, Americans came together to pick up thousands of pounds of garbage in Minneapolis’s lakes and parks, clean up the Charles River in Boston, enjoy a “Greening up the Mountains” festival in North Carolina, and plant trees at schools all across the country. As Senator Chuck Grassley noted, “Earth Day has sought to educate and motivate people to leave behind a better, cleaner place for our children and our children’s children.”
One would think there would be little objection to a day when a billion people, from Girl Scouts to workers, devote a little time to make our air healthier and water cleaner. Yet, for Pacific Legal Foundation attorney Damien Schiff, such volunteer activities apparently have a darker side: To him, Earth Day is “a threat to individual liberty and property rights.”
Normally the extreme musings of one attorney can be easily dismissed. But Schiff isn’t just another attorney. President Trump nominated Schiff – someone with such contempt for our environment that he compared Environmental Protection Agency (EPA) policies to slavery (the EPA “treat[s] American citizens as if they were not American citizens, as if they were just slaves”) – to be a federal judge. And every Republican on the Senate Judiciary Committee voted to support him.
And therein lies the problem we face today. The principles we embrace on Earth Day are facing a threat from a surprising quarter: our federal courts – courts that have in the past been a bulkhead against many of the worst corporate excesses and assaults on our environment. While the Supreme Court is the final decision maker in our judicial system, the vast majority of cases never make their way to its doors. The reality is that district and circuit court judges usually make the final decisions regarding the EPA, endangered species, and remedies for people harmed by pollution in their hometowns. And if the Trump Administration has its way, those courts will be packed with anti-environment judges who, once confirmed, can be counted on to invalidate and weaken hard-won environmental protections and federal laws, and protect industry polluters from being held accountable.
Anyone who doubts that motive need only look at the statements of White House Counsel Don McGahn, who has openly admitted to searching for judicial nominees who are hostile toward agencies like the EPA. McGahn unabashedly laid out a “coherent plan” to pair Trump’s dismantling of federal protections with judicial nominees who share this philosophy.
In keeping with this agenda, in recent weeks the President followed his nomination of Schiff with the nomination of one of the most outspoken critics of environmental regulation in the country, Andrew Oldham, to the Fifth Circuit Court of Appeals. Oldham currently serves as general counsel to Texas Governor Greg Abbott, with whom he shares an extreme right-wing philosophy. Not content to criticize one or two environmental protections, Oldham has questioned the entire legitimacy of the EPA: “One of the reasons why the administrative state is enraging, is not that you disagree with what the EPA does, although I do disagree with a lot of what it does. That’s not the thing that makes it enraging. It’s the illegitimacy of it.” According to Oldham, “[The Clean Power Plan] is the ultimate example, I think, of rule by bureaucrat, right . . . And again, it’s not about whether you think the Clean Power Plan is a good idea or a bad idea. What I want to challenge, and what this whole idea of why we need unique constitutional reform, is that it is a fundamentally illegitimate exercise of ways to come up to govern modern American life.” Oldham supports “mak[ing] all of those administrative regulations completely inoperable as a matter of law,” thus effectively eliminating every EPA environmental protection at once.
In addition to his extreme views, Oldham has worked alongside then-Oklahoma Attorney General Scott Pruitt to sue the EPA. Oldham represented the state of Texas in two cases before the Supreme Court to prevent the EPA from addressing climate change and reducing air pollution. In both cases, the Supreme Court substantially upheld the EPA’s authority.
While Damien Schiff may be alone in declaring Earth Day a threat to liberty, and Andy Oldham has been the most vocal about eliminating every EPA regulation, they are far from the only Trump nominees with deeply concerning records on the environment.
Neil Gorsuch, the beneficiary of 17 million dollars spent by dark-money groups to put him on the Supreme Court, had a long record as a lower-court judge of ruling against environmental protections and in favor of corporate interests. In fact, in one case, when Gorsuch voted to dismiss a suit the Wilderness Society and other environmental groups brought to protect federal lands, a dissenting judge blasted Gorsuch for “misstating” arguments in the case as well as the lower court’s decision, in order to arrive at the conclusion Gorsuch wanted. Gorsuch also dismissed challenges to mining projects, overturned EPA rulemaking to benefit corporate interests, and dissented from allowing environmental groups to intervene in a suit protecting our national forests.
Neil Gorsuch’s confirmation has ensured that a seat on the Supreme Court will be occupied, likely for decades, by a judge who will vote to weaken environmental protections.
And the list of anti-environment judicial picks doesn’t end there. For example:
- Howard Nielson (Nominated to the District Court for the District of Utah) argued, along with Andrew Oldham, that the EPA lacked the authority to regulate greenhouse gases under the Clean Air Act.
- Allison Eid (Confirmed to the Tenth Circuit), as a justice on the Colorado Supreme Court, ruled in multiple cases to protect corporations at the expense of the environment and public health. She overruled a lower court decision in order to allow a company to drill wells near a contaminated nuclear blast site, without even holding a public hearing to examine health and safety issues. Eid dissented when the Colorado Supreme Court allowed eminent domain to build public parks, but would have allowed a private pipeline company to use eminent domain for a petroleum pipeline.
- Stephen Schwartz (Nominated to the Court of Federal Claims in 2017) defended BP after the Gulf Oil spill, arguing that BP had no civil liability under the Clean Water Act despite being responsible for three million barrels of oil spilling into the Gulf of Mexico and causing catastrophic environmental damage and the deaths of millions of shorebirds, fish, and marine mammals. Schwartz has also challenged low carbon fuel standards for vehicles and fought laws ensuring that commercial vessels don’t overfish the oceans.
- Brett Talley (Nominated to the Middle District of Alabama, nomination withdrawn) described the EPA as “a lawless organ of federal power, divorced from the Congressional statutes that were meant to constrain it.” He also praised Scott Pruitt as “a man who has spent the last six years pushing back on the EPA’s most egregious overreaches,” and claimed that, “while Pruitt’s enemies would never admit it, in the long run his confirmation would be good for the environment.”
- Ralph Erickson (Confirmed to the Eighth Circuit) as a judge blocked the Obama Administration’s Clean Water Rule that expanded protection for two million miles of streams and 20 million acres of wetlands from taking effect. The Supreme Court overturned Erickson’s ruling.
- John Bush (Confirmed to the Sixth Circuit), blogging anonymously on the internet, scoffing at a campaign to reduce energy consumption that asked businesses and households to turn off nonessential lights and electronics for one hour by saying, “Plllease! This is the most ridiculous ‘energy conservation’ measure since President Jimmy Carter told us not to use any Christmas lights in the 1970s. Sorry, but I will be watching the NCAA basketball tournament at 8 p.m. ‘Saving’ the world from ‘climate change’ will just have to wait until we go to bed victorious after the U of L-North Carolina game.”
We should not be shocked that President Trump would nominate judges such as these. This is the same President who withdrew from the Paris Climate Agreement, appointed climate change denier Scott Pruitt to head the EPA and supported his efforts to dismantle the agency, repealed protections for wildlife and national monuments, and made it easier for corporations to pollute our nation’s streams and waterways – even as climate change is already threatening many of America’s coastlines, national parks, and wildlife.
But Trump and his Cabinet and agency heads will be gone in a few years, while federal judges serve for a lifetime. That’s why it’s more important than ever that we have judges who believe in the importance of environmental protection over corporate protection, and respect the environmental laws we have worked so hard to put in place. This year on Earth Day, let’s push our elected officials, including President Trump, to stop nominating people with harmful records on the environment for lifetime appointments on the federal bench. It is not too late to stand against nominees who refuse to stand up for our environment.