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Every year, federal courts decide cases that impact critical environmental issues relating to the air we breathe, the water we drink, the animals and habitats we care about, and the planet we live on.
ENVIRONMENT AND THE COURTS
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 lasting decisions regarding public protections, endangered species, and remedies for people harmed by pollution. Our federal courts have been a bulwark against many of the worst corporate excesses and assaults on our environment.
President Trump and his cabinet have been determined to dismantle environmental protections.
His nominees to the federal bench consistently side with corporate interests from big oil, mining, manufacturing, and chemical industries at the expense of the environment. Unfortunately, if the Trump Administration has its way, the courts will be packed with anti-environment judges who can be counted on to invalidate and weaken hard-won environmental protections and protect industry polluters from being held accountable. Former White House Counsel Don McGahn openly admitted to searching for judicial nominees who are hostile toward agencies like the Environmental Protection Agency (EPA) and unabashedly laid out a “coherent plan” to pair Trump’s dismantling of federal protections with judicial nominees who share this philosophy.
This plan is fully under way; Trump has made every effort to pack the federal courts with judges hostile to environmental protections, who will weaken protections for limiting fossil fuels, carbon emissions, water and air pollution, and countless other public protections.
In Massachusetts v. EPA, the Supreme Court held that the EPA had the authority to limit greenhouse gas pollution and in 2009, the EPA found that “greenhouse gas emissions endanger the public health and welfare of current and future generations.” Yet, President Trump has called climate change a “hoax” and disgraced ex-EPA Administrator Scott Pruitt said he did not believe carbon dioxide pollution from burning fossil fuels is a major cause of climate change.
In June 2019 the Trump Administration announced the new Affordable Clean Energy (ACE) rule, which – despite its name – will roll back environmental protections aimed at curbing climate change outlined in the Clean Power Plan. This dangerous move comes on top of Trump’s stated intent to withdraw from the historic Paris Agreement, eliminating the United States’ participation in a global effort to drastically reduce greenhouse gas emissions. The legality of this rule will be decided by federal judges.
Congress enacted the Clean Air Act in 1970. According to the EPA, “[a]fter the Clean Air Act’s first 20 years, in 1990, it prevented more than 200,000 premature deaths, and almost 700,000 cases of chronic bronchitis were avoided. From 1990 to 2010, total emissions of six principal air pollutants decreased by more than 41 percent.” The EPA also estimates that “[i]n 2020, the Clean Air Act Amendments will prevent over 230,000 early deaths.”
In EME Homer City Generation, LP v. EPA, then-D.C. Circuit Judge Brett Kavanaugh rejected an EPA rule requiring that states bear responsibility for their fair share of toxic pollution that reaches those downwind of the source. The EPA estimated that the rule could prevent between 13,000 and 34,000 premature deaths, 19,000 hospital visits, and 1.8 million days of missed work or school per year. The Supreme Court overturned Kavanaugh in a 6-2 decision.
The Clean Water Act passed in 1972. Before the Clean Water Act, rivers, lakes, streams, bays, and coastal waters were not protected from toxic pollution. There was no effective way to prevent the dumping of waste into our waters. Toxins contaminated the water that we drank, fished in, and used for recreation.
However, the Trump Administration has targeted the Clean Water Act with its new “Waters of the United States” (WOTUS) rule – a rule which, if enacted, “would remove federal protections for 18 percent of stream and river miles and 51 percent of wetlands in the United States, putting protections at their lowest levels since the Reagan administration and leaving millions of Americans vulnerable to polluted water.” The legality of this rule will be decided by federal judges.
THREATS TO ANIMALS AND HABITATS
In 1978, the Supreme Court upheld the validity of the Endangered Species Act (ESA) in Tennessee Valley Authority v. Hill. This decision enabled the Secretary of the Interior to provide vital protections for endangered species – protections which the Trump Administration seeks to overturn.
President Trump’s nominees to the federal bench threaten the environment.
Neomi Rao (D.C. Circuit) wrote derisively of “[t]he three major environmental bogeymen, the greenhouse effect, the depleting ozone layer, and the dangers of acid rain.” She criticized environmental groups for “accept[ing] issues such as global warming as truth with no reference to the prevailing scientific doubts.” Rao also bashed groups for “promot[ing] a dangerous orthodoxy that includes the unquestioning acceptance of controversial theories like the greenhouse effect.”
J. Campbell Barker (Eastern District of Texas), Allen Winsor (Northern District of Florida), and Eric Murphy (Sixth Circuit) fought the Clean Power Plan, EPA-issued policies that limited the dumping of vast amounts of carbon into the atmosphere and that sought to curb climate change.
Brett Kavanaugh (Supreme Court) sided against the EPA’s authority to regulate greenhouse gases.
Brett Kavanaugh (Supreme Court), while on the D.C. Circuit, rejected an EPA rule requiring that upwind states bear responsibility for pollution they cause in downwind states, which was overturned by the Supreme Court.
Andrew Oldham (Fifth Circuit) sued to block the EPA from limiting pollution and enforcing the Clean Air Act.
Ralph R. Erickson (Eighth Circuit), as a district court judge, enjoined the Clean Water Rule.
Joan Larsen (Sixth Circuit) would have prevented Flint, Michigan residents who drank and bathed in lead- tainted water from suing state and city officials for exposing them to contaminated water.
ATTACKING PUBLIC PROTECTIONS
Patrick Wyrick (Western District of Oklahoma) assisted disgraced former EPA Administrator Scott Pruitt in dismantling environmental protections and was part of exchanges between Pruitt and energy lobbyists.
Neil Gorsuch, Brett Kavanaugh, Damien Schiff, Neomi Rao, and Andrew Oldham all fought against the reach of the EPA’s regulatory authority, while simultaneously threatening vital environmental protections.
Andrew Oldham (Fifth Circuit) questioned the legality of the entire EPA, referring to the agency as “utterly and fundamentally illegitimate.”
Damien Schiff (Court of Federal Claims) said the EPA treats citizens as “slaves” and even argued that Earth Day was a threat to liberty.
Howard Nielson (District of Utah) represented Republicans in Congress in opposing EPA regulations.
Stephen Schwartz (Court of Federal Claims) defended BP after the Deepwater Horizon explosion. Schwartz worked as co-counsel for the Rocky Mountain Farmers Union, challenging Low Carbon Fuel Standard (LCFS) regulations for motor fuel used in California.
David Porter (Third Circuit) defended a bill that vastly expanded the amount of state forest land eligible for gas extraction.
Daniel Collins (Ninth Circuit) defended the interests of big oil and energy companies at the expense of the deteriorating climate and people’s health and safety.
THREATS TO ANIMALS AND HABITATS
Britt Grant (Eleventh Circuit) and Damien Schiff (Court of Federal Claims) challenged dozens of protected species classifications, ranging from polar bears to dusky gopher frogs. Schiff also argued the Endangered Species Act (ESA) was unconstitutional.
Neil Gorsuch (Supreme Court), while on the Tenth Circuit, frequently turned away challenges by environmental groups seeking to protect natural resources and public land.
Eric Murphy (Sixth Circuit), during his tenure as state solicitor of Ohio, joined a brief to weaken the ESA.