Environmental activists rally in front of the U.S. Supreme Court in 2022 after it ruled against the Obama administration’s plan to cut climate-warming emissions at the nation’s power plants. The Supreme Court has since further limited the power of federal agencies like the Environmental Protection Agency.
Drew Angerer/Getty Images
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Drew Angerer/Getty Images
Nerdy question for all of you policy wonks out there: What did the Obama administration’s landmark climate regulation on the nation’s power plants — the Clean Power Plan — and the Trump administration’s more lenient replacement of it — the Affordable Clean Energy Rule — have in common?
Both were seen as major industry-changing regulations. Both were lauded by some and reviled by others.
And neither went into effect.
“Basically any environmental rule of any magnitude is challenged in the courts,” said Lisa Heinzerling, a law professor at Georgetown University and a senior adviser to former President Barack Obama’s Environmental Protection Agency (EPA). “The courts have the final word.”
As President Biden and former President Donald Trump vie for a second term amid what’s sure to be one of the hottest years in recorded history, NPR’s Climate Desk has looked at both candidates’ records on climate change and what to expect if either is elected. Trump is promising to “drill, baby, drill,” and weaken regulations on oil and gas development. Biden is promising to create more jobs with an energy transition away from climate-warming fossil fuels.
But given the litigious nature of environmental law and the U.S. Supreme Court’s recent decisions, particularly one limiting the power of federal agencies, legal experts say one of the election’s most consequential aspects for the climate would be the judicial appointments either candidate makes.
The president has the power to nominate federal judges for lifelong terms. Not only to the Supreme Court, but also to federal appellate and district courts, which see tens of thousands of cases each year. Pending Senate approval, those appointments shape the country’s judiciary and the government’s ability to implement laws for decades.
People cool off in misters along the Las Vegas Strip during a deadly, record-breaking heatwave. Heatwaves are growing in intensity, frequency and duration as climate change intensifies.
John Locher/AP
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John Locher/AP
“Almost all cases involving some type of environmental action ultimately go to a court of appeals,” said Jeff Holmstead, an attorney with the law firm Bracewell LLC, who worked on air issues at the EPA under former President George W. Bush.
Biden has appointed 201 judges, including one justice to the Supreme Court. Trump appointed 234, including three Supreme Court justices, giving conservatives a 6-3 majority on the nation’s highest court.
Since then, the Supreme Court has ruled against agencies’ ability to cut climate-warming emissions, to protect the nation’s wetlands and ephemeral streams and to limit air pollution for states downwind of power plants and factories.