This begins a new series of commentaries on the impact the Trump presidency and the current Republican Congressional majorities are having on federal climate change policies. The emphasis of the series is not on executive branch actions to revise and rescind existing environmental regulations nor on Congressional efforts to amend or to abolish current climate-related laws—although these actions will be discussed.
The impacts I particularly wish to address through the series stem from the changing of the judicial guard in the courts established under Article III of the U.S. Constitution[i], which states:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. (Article III/Section I)
There are three primary levels of Article III courts (see Map for districts/circuits):
Other Article III courts include bankruptcy and those of specific jurisdiction like the United States Tax Court and the United States Foreign Intelligence Surveillance Court (FISA).
FISA hears requests for surveillance of foreign intelligence agents. It has been lately referenced in news reports relating to the 2016 presidential elections and the on-going investigation of the relationship between Russia and individuals connected to the Trump campaign and administration, e.g., Paul Manafort, Jared Kushner, and General Flynn. FISA is also the court that would have to have approved a request by the Obama administration had they tapped The Donald’s phones, as alleged.
Federal judges and SCOTUS justices are selected by the President with the advice and consent of the Senate. Unlike legislative and regulatory actions, presidential appointments—once confirmed—are rarely undone.
Judges and justices remain in office throughout their lifetimes, unless voluntarily resigning or being removed for cause. The average age of Trump’s gaggle of jurists hovers in the late forties and early fifties—with at least one in his thirties. It follows the trend of the past several decades. (See Figure 1 [ii])
In judge years, that translates into decades on the bench.
The longest sitting SCOTUS justice, William O. Douglas, served on the high court for 36.6 years. Should Justice Thomas (68) remain on the bench until age 80, he will have served 37 years. As average life spans grow, so apparently does a judge’s tenure. At 80 Thomas would still be younger than Justice Ginsburg who is now 84 and still going strong.
The actuarial firm of Oliver Wyman estimates that 25 SCOTUS justices are likely to be appointed over the next 100 years. This as compared to 47 having been appointed in the past 100 years.
Removal of a federal judge follows the same process by which a president is relieved of command-- impeachment by the House of Representatives and subsequent conviction by the Senate.
To date, only 15 judges have been impeached since the nation was founded. Of these, eight have been convicted, three resigned and four were acquitted. The first judge impeached was John Pickering of the United States District Court for the District of New Hampshire. He was found mentally unstable and intoxicated while on the bench and removed from office on March 12, 1804.
The last judge, Thomas Porteous of the U.S. District Court for the Eastern District of Louisiana, was a Clinton appointee and defrocked for bribery and perjury. Other judges facing impeachment were charged with bad behaviors ranging from abuse of power, improper relationships with litigants, favoritism and “refusing to hold court and waging war against the United States government.”
Trump came into office having twice as many open judgeships to fill than Obama. Less than a year into his term, The Donald has nominated 59 federal judges—15 of whom have been confirmed.
Trump has an opportunity to make an impression on current and future environmental policy more lasting than he and the current Congress might achieve through other legislative or executive means, e.g., slashed program budgets or executive order. For a man who has shown disdain for the independence of the judicial branch and vilified for it, there must be more than a modicum of guilty pleasure in his current position—a feeling undoubtedly shared by many conservative Republican stalwarts.
Currently, the total of Article III judgeships stands at 860, including nine SCOTUS justices and those presiding over the U.S. Court of International claims. As of December 3, 2017, there were 144 judicial vacancies, with 44 of those positions having named nominees waiting for approval by the Senate. There are an additional 17 vacancies anticipated in the very near future based on planned/announced retirements. Two nominations to fill those slots have been made and are also awaiting Senate action.
Circumstances surrounding the judiciary can be nearly as fluid as those around the legislative and executive branches. For example, the number of bench positions is not fixed nor is it a function of some automatic formula, i.e., caseloads per judge. It is determined at will by the Congress.
It is possible, therefore, that Trump and Republican Congressional leaders will move to increase the number of available judgeships, while they still control both ends of Pennsylvania Avenue. Noises to that effect have already been heard.
There are more moving parts to the judicial story than one might imagine. The series will reach beyond the age of the nominees and sitting judges and justices to address such things as:
A Tale of Two Citizenries
As befitting a nation divided, these are the best of times and the worst of times for clean energy developers and environmental defenders. Increasingly the primary venue of national climate policy is moving from the halls of Congress to the halls of justice.
To the good—industries, states, cities, and investors are more accepting of the fact the global climate is changing and are acting. With the one exception of Trump’s America, every nation on Earth has signed a single document that recognizes the problem and records a willingness to become part of the solution.
To the not so good—Trump’s November 2016 victory has resulted in the empowerment of leading deniers of prevailing climate science. Together with the capture of Congress by a party populated with anti-environmentalists, the coming years will continue to be dominated by political and legal conflicts between highly charged opponents.
Clean energy and the environment have become targets of the Administration and many in the 115th Congress. The assaults are coming from many directions and on multiple fronts, e.g., cleansing websites of any reference to climate change, refusing to enforce existing regulations, slashed program budgets, and defiance of the market through draft orders to utilities to purchase of large coal supplies in the name of grid reliability and national security.
The Senate’s use of the tax reform legislation to open the Arctic National Wildlife Refuge (ANWR) to fossil fuel companies and the House and Senate efforts to change existing investment and production tax credits for renewable energy technologies reflect the current Congress’s attitude towards global warming.
The ANWR proposal has proven more than 12 otherwise party-loyal-politicians in the House can bear. Why are they opposed?
For the constituents of Representative Curbelo (R-FL) and others, climate change is real, and they fear it will annex their communities to the ancient city of Atlantis. These 12 have written of a time long since. Their recent letter to Speaker Ryan and Senate Majority Leader McConnell stated in part:
Since the Refuge [ANWR] was originally set aside for protection in 1960 by Republican President Dwight David Eisenhower, Republicans, Democrats and Independents alike have stood together to protect this unparalleled landscape. For decades, Congress has voted to prohibit oil and gas development in the Refuge…the Arctic Refuge stands as a symbol of our nation’s strong and enduring legacy.
Bi-partisan protection of the environment is a thing of the past. In place of prior stewardship and policies for the protection of the environment and those who inhabit it, The Big D has declared his intention to make the nation energy dominant in the world.
For Trump and company, an all-of-the-above strategy means flooding the world’s energy markets with coal, oil and natural gas. A policy Congressman Curbelo and his Republican colleagues worry will flood their districts with ocean waters. A policy they are unlikely to stop with letters to leadership.
These well-meaning elected officials want what their constituents want—the peaceful enjoyment of their homes and neighborhoods—a sustainable future for their children filled with opportunity. Not incidentally, these members of Congress want to continue to have above ground districts to represent.
The promise of the Obama presidency was the hope it had finally placed the nation on a path forward to sustainability, after suffering years of retreat led by another Republican--George Walker Bush, the nation’s 43rd president.
The promise of the Trump administration is to unwind the environmental protections of his predecessor. The winding and unwinding of federal climate programs and protections saps the positive energies of one administration by another and condemns the nation to a Sisyphean-cycle of policymaking that inserts massive uncertainty into the economic marketplace.
The President proposes a court disposes
The intense partisanship characterizing 21st-century politics is making the federal courts the principle field upon which climate deniers and defenders are doing battle. Whereas Congress once was the primary place where environmental policies were proposed, debated and enacted into law, it is now a place where action goes to die.
According to Richard Lazarus, a Harvard Law School professor, 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…is that, whether the executive branch is run by [President George W.] Bush or … by Obama, each time they're kind of stuck with old language," …noting that the 1970 Clean Air Act hasn't seen a major overhaul since 1990.
Federal courts have traditionally been the principal arbiters of the limits and obligations of the federal government regarding environmental protection. Although Congress and the President enact laws and regulations, the courts are routinely asked to rule on their conformity to the terms and conditions of the U.S. Constitution.
It is the frequency and ferocity of the lawsuits that make today’s cycle of confrontation historic in character. One would be hard-pressed to name one substantive climate-related executive order by either Trump or Obama that has gone unchallenged in court.
Obama cited Congressional inability to pass legislation that would have accomplished what he had hoped by ordering EPA to craft the Clean Power Plan (CPP/Plan). Although Trump’s desire to undo the Plan was more readily fulfilled by executive action, The Donald could well cite gridlock for the reason he ordered his EPA to revise or rescind the CPP rather than going through Congress.
The only environmental actions Congress seems able to take—for better or worse—are ones accomplished through single-party action and budget reconciliation rather than normal legislative channels. The previously mentioned ANWR and renewable energy tax credit portions of the current tax reform legislation exemplify the pattern. So too do Trump’s recent proclamations reducing the size of two Utah national monuments by a total of nearly two million acres.
One-sidedness naturally causes opponents to seek alternative venues in which to put forth their claims. Whether it is the State of West Virginia and the National Mining Association suing EPA claiming it has exceeded its authority under the 1970s Clean Air Act or the State of Massachusetts and the Sierra Club suing the Agency claiming it has not gone far enough to regulate carbon emissions, the result is the same.
The President nominates, will his appointees now go on to dominate?
Hyper-partisanship and Congressional gridlock are impacting the nomination and confirmation of federal judges. The next installment of the Here Comes the (Trump) Judges series will describe and discuss how the process has become more one-sided, the group behind the nominations and introduce readers to some of the (mostly white) men Trump has nominated, and the Senate has approved as arbiters of federal environmental actions.
 Other federal courts, e.g. Tax and Claims, are established under Article I of the Constitution as consistent with legislative powers. These courts operate under a different set of rules and procedures and are not addressed in the series.
 Source: The Federal Judicial Center
Lead photo credit: Pixabay
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.