From Inside Climate News (David Hasemyer):
The president now controls more than a third of the seats on the Western states’ reliably pro-environment appellate court
The stakes for circuit court appellate rulings that affect environmental regulation, natural resources and climate change are high. While it is too early to tell how the Trump appointees will affect the court over time—most of them are under 50, with a history of supporting fossil fuels—many environmentalists see them as fierce partisans, hostile to protecting people’s health and safety from the harms of air and water pollution, toxic wastes and climate change.
“I think there is a real concern that we see cases decided on the basis of ideological zeal, rather than established legal principles and the rule of law,” said Clare Lakewood, legal director of the Climate Law Institute’s Center for Biological Diversity, a nonprofit organization dedicated to environmental protections. “That ideological zeal may well reveal itself in cases that impact whether we are able to ensure a livable climate for our future generations. It is a consequence that cannot be taken too lightly.”
Brian Fitzpatrick, a member of the Federalist Society and a Vanderbilt University law professor, sees the environmentalists’ fears of “ideological zeal” as ironic—and unfounded. He considers Trump’s appointees “probably the most talented minds ever put forward by a president.”
“Are they conservative? Yes,” Fitzpatrick said. “That is what happens when you elect a Republican. Democrat presidents put on liberals, Republicans put on conservatives. That’s the way the system works.”
The true measure of the new judges is their intellectual capacity, not any perceived biases, Fitzpatrick said. “The important question is ‘are they thoughtful jurists?’ and the answer here is yes,” he said. “Even if we disagree with them sometimes, they listen, they consider what you have to say, and they make the best decisions they can in light of many very complicated and competing considerations.”
With its purview encompassing vast wilderness, federal lands, and states prone to environmental activism, the court—commonly seen as second only to the D.C. Circuit in Washington in its national influence—has a legacy of keystone decisions on environmental cases.
“The geography and population and political landscape within the jurisdiction of the Ninth Circuit means that it is often where high-profile and consequential environmental law cases are heard,” said Richard Frank, an environmental law professor at the University of California at Davis who annually produces a review of environmental law cases heard by the court.
It’s current docket is packed with high-profile environmental and climate cases, and a clear signal is expected before the end of the year as to whether the Ninth Circuit will continue its tradition of being relatively sympathetic in such matters. A series of climate lawsuits filed against the fossil fuel industry by five cities and three counties in California seek to hold the industry responsible for damages caused by climate change. A three-judge panel comprised of judges appointed by George W. Bush, Barack Obama and Trump is tasked with untying conflicting rulings by two lower courts.
In one case, the cities of Oakland and San Francisco are asking the appellate court to reverse a decision dismissing their lawsuits seeking billions of dollars to fund strengthening coastal infrastructure that protects property and neighborhoods against sea level rise. The other seeks the court’s confirmation that the litigation brought by six cities and counties requesting damages related to climate change should be conducted in state rather than federal courts.
In another high-profile climate case, the court has been asked to reverse a decision dismissing a lawsuit brought on behalf of 21 children suing the federal government to force it to take more decisive action to head off climate change. The suit was initially dismissed in a 2-1 vote by a panel of Ninth Circuit judges in January, on grounds that climate change was not an issue for the courts. All three members of the three-judge panel were appointed by Obama. The plaintiffs now seek a rehearing by 11 justices.
“How the Ninth rules in those two cases will provide a good indication of what we can expect from the Ninth Circuit prospectively when it comes to environmental law in general and climate change issues in particular,” said Frank, the UC Davis law professor.
The court, in other rulings, has embraced climate science and the need to reduce the greenhouse gas emissions that have led to global warming. In one previous decision, for example, the court embraced climate modeling based on scientific data as a foundation for protecting Alaskan seals.
Rulings in such cases could set the stage for how the effects of climate change are addressed for years to come.
Sen. Dianne Feinstein (D-Calif.), the ranking member of the Senate Judiciary Committee, said the Ninth Circuit has tremendous power to influence how climate change and its consequences are addressed, beginning with California’s comprehensive laws addressing climate change.
“If the courts were to ignore the will of the people and overturn those laws on ideological grounds, it would be nearly impossible for states to act on climate change,” Feinstein said.
The Ninth Circuit is certain to hear cases involving the Trump administration’s efforts to roll back California’s tough auto emissions standards. The court has previously backed the state in requiring tougher vehicle emissions standards than those mandated by federal law, over the objections of the fossil fuel industry.
It is also likely to decide cases now working their way through the trial courts in the Ninth Circuit involving coal mining, offshore oil and gas drilling, and pipelines.
[The President] Has Made More Appellate Appointments Than Any President in 40 Years
The ideological shift in the Ninth Circuit mirrors the conservative swing Trump has set in motion in circuit courts across the country. The Senate has confirmed 51 appellate judges recommended by Trump—more than any president in 40 years—accounting for more than a quarter of all sitting appellate judges.
As the 2020 election nears, the possibility of a second Trump term brings with it the certainty of more judicial appointments. Trump probably will use his record of judicial appointments and the prospect of continuing to appoint conservative judges to solidify his support among Republicans.
For legal scholars and environmental activists, the reshaping of the court has set off alarms, particularly relating to climate and environmental cases. Long after President Trump leaves office, the increasingly partisan federal judiciary he is forging will be positioned to strike at the heart of cases seeking to rein in global warming and hold the fossil fuel industry accountable for environmental damages.
Senate Majority Leader Mitch McConnell (R-Ky.) told Time Magazine in 2018, “The impact that this administration could have on the courts is the most long-lasting impact we could have.”
Ten Democrats on the Senate Judiciary Committee sounded an alarm in a scathing 2018 report: “President Trump and Senate Republicans have prioritized filling the nation’s federal courts, particularly circuit courts, with ideological judges intent on weakening civil rights, women’s rights, workers’ rights, and the ability of everyday Americans to hold corporations accountable.”
Eleven of Trump’s first 15 circuit court nominees, and seven of his 10 nominees to the Ninth Circuit, were confirmed with fewer than 60 votes. By comparison, Obama’s first 15 circuit court nominees were confirmed with overwhelming bipartisan votes, according to the committee report.
Trump’s nominees have stirred controversy over their lack of experience and brash expressions of partisanship. Nine have received “not qualified” ratings from the American Bar Association, and seven of those were ultimately confirmed to appellate courts across the country.
The most recent controversy involves Justin Walker, a 38-year-old federal district judge from Kentucky nominated early this year by Trump to sit on the prestigious U.S. Court of Appeals for the District of Columbia Circuit.
In one of his few notable—and most incendiary—rulings, Walker issued a blistering opinion last month in which he accused the mayor of Louisville, Kentucky, of attempting to criminalize Easter by issuing a social distancing directive that strongly suggested churches not host drive-in services on Easter Sunday.
Walker, who has been widely praised by conservatives, including McConnell, was confirmed by the Senate last year with the minimum 50 votes despite criticism over his lack of trial experience.
McConnell Has Been [the President’s] Point Man on Judicial Nominees
McConnell and Republican leaders of the Senate Judiciary Committee have played key roles in Trump’s success in appointing conservative judges, fast-tracking confirmation votes and weakening the tradition of allowing senators to block nominees from their states whom they opposed.
The Senate’s so-called blue-slip review, which allowed home-state senators to submit a favorable or unfavorable opinion of a nominee before their hearing in the Judiciary Committee, was designed to allow for consultation between the White House and home-state senators. An unfavorable blue slip usually meant the nomination would not go forward.
But especially in the Trump era, the two most recent chairmen of the Judiciary Committee, Lindsey Graham (R-S.C.) and Chuck Grassley (R-Iowa) have largely ignored the tradition. Six of the 10 Trump nominees for the Ninth Circuit have been approved despite blue slip objections by their home state senators; both Democrats and Republicans.
Eric Miller was confirmed to serve on the Ninth Circuit last year without the blue slip concurrence of his two home-state senators—Washington state Democrats Patty Murray and Maria Cantwell. He was the first federal judicial nominee to be confirmed without support from either of his home-state senators.
Sen. Murray blasted the Republican stampede to confirm Miller, who won confirmation on a 53-46 vote.
“This is not a partisan issue—this is a question of the Senate’s ability and commitment to properly review nominees,” Murray said in a fiery speech during Miller’s confirmation. “Yet here we are, on the Senate floor, barreling toward a vote to confirm a flawed nominee—who came to us following a flawed nomination process, all because a handful of my Republican colleagues will apparently stop at nothing to jam President Trump’s extreme conservatives onto the courts—even if that means trampling all over precedent, process or any semblance of our institutional norms.”
McConnell’s zeal in confirming Trump’s judicial nominees matches his previous blocking of Obama’s. As he did with Merrick Garland’s nomination to the U.S. Supreme Court, McConnell derailed Obama’s pick to fill a seat on the Ninth Circuit.
In December 2015, when Judge Harry Pregerson, one of the court’s most liberal judges, retired to senior status, Obama nominated U.S. District Judge Lucy Koh to fill the vacancy. The Republican controlled Senate Judiciary Committee voted 13-7 in September 2016 to send her nomination to the full Senate for confirmation, but she was blocked from a final floor vote by McConnell and never confirmed.
That seat is now occupied by Daniel Collins, a member of the Federalist Society who was rated “well qualified” by the bar association. He was confirmed by the Senate last year in a vote of 53-44, without any support from Democrats.
Collins has defended oil and gas companies in climate change-related litigation, including a lawsuit brought by the indigenous Alaskan community of Kivalina that unsuccessfully sought damages from fossil fuel companies over displacement from coastal erosion and rising seas. His former law firm, Munger, Tolles & Olson, lauded Collins on its website for his aggressive defense of industry giants against climate-based lawsuits.
“Mr. Collins also successfully argued two major cases in the Fifth and Ninth Circuits that effectively brought an end (for the time being) to efforts to hold the energy industry liable in tort for injuries allegedly caused by global warming,” according to a cached biography.
Just before accepting his judgeship, Collins defended Shell Oil in a series of lawsuits filed by a group of California communities, including tiny Imperial Beach, California, that tried to hold oil companies accountable for damages related to sea level rise caused by climate change.
[The President] Has Made No Secret of his Desire to Change the Ninth Circuit
The Ninth Circuit, based in San Francisco, covers nine states, including California, Alaska, Arizona and Hawaii, along with Guam and the Northern Mariana Islands. The circuit has 29 judges; more than any of the other 12 circuit courts.
With 16 Democrats and 13 Republicans now on the court, the odds of drawing a three-judge panel that might be more receptive to climate issues—the typical number for hearing cases— has gone down with the flurry of Trump appointees. Four of his 10 appointees have taken seats previously held by judges appointed by Democrats.
Circuit courts wield considerable power, usually providing the last word on rulings appealed from lower courts. More than 10,000 appeals were filed in the Ninth Circuit in 2018, according to the circuit’s most recent annual report.
The Ninth Circuit also has challenged Trump on a wide array of issues beyond climate and environmental matters, including immigration, reproductive rights and health care.
Trump has made no secret of his desire for change on the court, which has come under scathing, rhetorical attacks from the president for decisions he doesn’t agree with, especially where his immigration policies have been at issue.
“Every case that gets filed in the Ninth Circuit, we get beaten,” Trump complained in 2018. “It’s a disgrace.”
The Trump’s appointees to the court share some common, right-wing philosophical DNA. Most notable is an association with the Federalist Society, one of the most influential conservative legal groups in the country and one that the president has turned to for advice on judicial selections.
Trump’s judges have ideological records stretching back to law school that suggest an undermining of civil rights, affirmative action, workers’ rights and the rights of the disabled. Some had links to anti-LGBTQ organizations, promoted the criminalization of abortion and advocated restrictive voting laws. Nearly half have a past history of opposing climate issues, one that troubles environmentalists, tribal nations, Western state governors and senators.
Eight of the 10 Trump appointees to the Ninth Circuit had no prior judicial experience, and just five received a unanimous vote of “well qualified” by the American Bar Association.
Senate Democrats have shown measured support for three of Trump’s nominees to the Ninth Circuit. The only two nominees with prior judicial experience garnered support from a majority of Senate Democrats.
Mark Bennett, the former Republican attorney general of Hawaii, received unanimous support from Democrats, though he failed to win a majority of Republicans. All 27 votes against his confirmation came from Republican senators upset with his tough gun control stance as Hawaii’s attorney general.
Although six of the 10 Trump appointees were replacements for judges seated by previous Republican administrations, their legal pedigrees as fossil fuel advocates suggest a less impartial temperament than that of the judges they replaced, environmental legal experts say.
Three have served in the Natural Resources Division of the Environmental Protection Agency, often working as much to stifle environmental protections as defend them. Four others served in the Justice Department under Trump and George H. W. Bush.
As lawyers in private practice, they have worked for law firms that defended oil and gas giants such as Shell against allegations of climate-related harms.
Some, like Ryan Nelson, who took his seat on the court in 2018, have voiced support for Trump’s embrace of the oil, gas and coal industries, and fought against climate reforms.
Prior to his court appointment, Nelson had been nominated to become Solicitor General of the Department of the Interior. Although he was not confirmed, he faced questioning by the Senate Committee on Energy and Natural Resources.
In written responses to committee questions, Nelson supported Trump’s “America First Energy Plan” that would dismantle the Obama Administration’s climate policies, attempt to revive the coal industry and prioritize developing fossil fuels.
“I am convinced that President Trump’s and (then Interior) Secretary (Ryan) Zinke’s goals for the Department, including the America First Energy Plan, will not only preserve but increase the value of our natural resources for future generations,” Nelson wrote.
As a Deputy Assistant Attorney General in the Justice Department’s Environment and Natural Resources Division during the George W. Bush Administration, Nelson appeared before the Ninth Circuit to argue against protecting Alaskan wetlands from being filled in by tailings from a gold mining operation. The judges ruled in favor of the environmental organizations suing to stop the dumping, but the U.S. Supreme Court ultimately overturned that ruling and allowed the mining company to proceed with the wetlands disposal.
During their Senate confirmations, seven of the 10 newly appointed Ninth Circuit judges were questioned about climate change. None of them fully acknowledged human activity as its primary cause.
Judge Danielle J. Hunsaker, who was appointed to the bench by Trump in 2019, wrote that climate change was a “political” issue that it was inappropriate for her to comment on, because cases involving it were “likely to come before the court in pending or impending litigation.”
Another Trump nominee to the bench acknowledged that humans contribute to climate change, but with a skeptic’s qualification of his answer.
“I am not a scientist in that area, but I do agree, based on the knowledge that I have, that human activity has contributed,” Ryan Nelson, appointed to the bench in 2018, wrote in response to a question by Feinstein during his confirmation. “To what degree, I don’t think I’m prepared to address.”
The evasion of questions and unwillingness to acknowledge the widespread scientific consensus regarding climate change, along with the suggestion that politics plays a role in their judicial calculations, worries Feinstein.
“Climate change isn’t a political issue; it affects all of us,” she said in an email to InsideClimate News. “We ask judges to make decisions based on the facts and that includes the best science available. If a judge is unable or unwilling to accept basic scientific facts, their ability to remain impartial is compromised.”
Although the number of vacancies that will be created by future retirements is uncertain, especially among those judges appointed by Democrats, the numbers signal the likelihood of additional appointments during a second Trump administration, greatly magnifying his potential impact on the court.
Federal judges have no mandatory retirement age, but they become eligible to retire or take senior status at age 65. There are 13 judges on the Ninth Circuit over age 65, 10 appointed by Democratic Presidents Clinton or Obama and three by George W. Bush, a Republican.
“The natural consequences of any additional appointments during a second term will be a more conservative court where environmental cases may no longer have the kind of reception they have enjoyed in the past,” said Carl Tobias, a University of Richmond law professor who studies federal circuit courts. “There may even be a chilling effect on these cases being brought to the court.”
A Strong Body of Law on Climate Science
The Ninth Circuit has built a strong body of case law establishing the role of climate science in government decision-making.
Last year, a three-judge panel on the court rebuffed a legal attempt by a dozen plaintiffs, including the American Fuel & Petrochemical Manufacturers Association and the National Petrochemical & Refiners Association, to block a portion of California’s groundbreaking climate change and clean air laws intended to reduce the amount of carbon pollution released from fuels sold in California. It is one of the most recent keystone cases that offer a window into the court’s view of the importance of curbing climate change.
The plaintiffs challenged California Air Resources Board (CARB) regulations aimed at cutting greenhouse gas emissions from the state’s cars and trucks by 20 percent by 2030, saying federal commerce laws superseded the state rules.
In a unanimous opinion, Judge Ronald M. Gould wrote that “California should be encouraged to continue and to expand its efforts to find a workable solution to lower carbon emissions, or to slow their rise. If no such solution is found, California residents and people worldwide will suffer great harm.”
He continued, “These persons may be subjected, for example, to crumbling or swamped coastlines, rising water, or more intense forest fires caused by higher temperatures and related droughts, all of which many in the scientific communities believe are caused or intensified by the volume of greenhouse gas emissions.”
In 2018 the court stood up for protections of ice-dependent seals in Alaska when it rejected the oil industry’s challenge to a National Marine Fisheries Service decision to list the animals as an endangered species. The court’s decision was based, in part, on Intergovernmental Panel on Climate Change projections of steep declines of the seals’ sea ice habitat by 2100.
“[T]he IPCC climate models constitut[e] the best available science and reasonably suppor[t] the determination that a species reliant on sea ice likely would become endangered in the foreseeable future,” according to the opinion.
The parties attempting to block the listing included the American Petroleum Institute and the Alaska Oil and Gas Association, which counts Exxon, BP, Shell, Chevron and Hilcorp as members.
In other recent rulings, the court has enshrined the use of IPCC climate modeling as the “best available science” when considering global warming projections and dismissed arguments that promote uncertainties in climate change forecasts.
“That shouldn’t be remarkable or something necessary to laud, but in a political landscape where climate denialists still have influence, it is an important feature of the court’s jurisprudence,” said Lakewood, of the Climate Law Institute.
Yet panels composed of judges appointed by both Democrats and Republicans have issued decisions that undercut attempts to rein in climate change and the resulting harm to people.
In a critical 2013 ruling, the court ruled against environmental organizations in Washington State which alleged that state agencies were required to regulate the greenhouse gas emissions of five oil refineries under the Clean Air Act, and that failure to do so caused injuries to people’s health.
The court’s opinion went so far as to adopt industry arguments by the Western States Petroleum Association in rendering its findings:
“It is not possible to quantify a causal link, in any generally accepted scientific way, between GHG emissions from any single oil refinery in Washington, or the collective emission of all five oil refineries located in Washington, and direct, indirect or cumulative effects on global climate change in Washington or anywhere else.”
‘Arrogant, lazy…an ideologue’
No Trump appointee bodes more uncertainty for climate cases than Judge VanDyke.
As a Deputy Assistant Attorney General at the Justice Department’s Environment and Natural Resources Division, VanDyke defended the construction of the Keystone XL pipeline, and challenged the standing of environmental groups to oppose the project.
A week before Trump nominated him for the appellate court, VanDyke was arguing on behalf of the president against a request by environmental groups to void approvals issued by the U.S. Army Corps of Engineers for the $8 billion tar sands pipeline. Groups including the Natural Resources Defense Council, Northern Plains Resource Council, Friends of the Earth and Sierra Club claimed the Corps did not consider the potential for spills along the pipeline’s route, which crosses hundreds of rivers, streams and wetlands between the Canadian border and Nebraska.
In seeking the dismissal, VanDyke assailed the lawsuit as engaging in “linguistic gymnastics” that took a “lopsided view” of the Constitution.
The Keystone project had been rejected in 2015 by Obama, who said his decision cemented the United States as a leader against climate change. But Trump revived the project via executive order four days after taking office in 2017, fulfilling a campaign pledge to expand energy infrastructure, and continuing to question climate change science.
Trump enjoys “broad authority to revisit, reverse and undo prior decisions,” VanDyke stated in one court filing dealing with overturning Obama’s decision.
The case remains pending in a Montana federal court.
In his role as an EPA lawyer, VanDyke defended the Bureau of Land Management’s decision to repeal a 2015 rule designed to protect water, wildlife and public health from the harmful effects of hydraulic fracturing on federal and tribal lands. The purpose of erasing the rule was to “remove burdensome regulatory requirements,” VanDyke wrote in a motion. A federal court upheld the BLM’s decision earlier this year.
VanDyke’s career path to the appellate court began in 2005 when he graduated magna cum laude from Harvard Law School. He served as Assistant Solicitor General of Texas and Solicitor General of Montana, and in Trump’s justice department represented the EPA.
After resigning as Solicitor General of Montana, VanDyke sought election to the state Supreme Court, with Chevron and Exxon making token financial contributions to VanDyke’s campaign, within the state’s strict $320 maximum donation limit. The belief that VanDyke would confront environmental regulation was reflected in a third-party mailer showing VanDyke’s picture beside the oil pumpjack and pipeline, and he cast his incumbent opponent as a liberal, activist judge. The 2014 nonpartisan race took on a distinctly partisan edge.
After Trump nominated VanDyke, 47, to serve on the Ninth Circuit, the American Bar Association rated him as “not qualified.” Still, he won Senate confirmation by a slim margin—a 51 to 44 party-line vote, with one Republican voting no and one Republican abstaining. In rating him “not qualified,” the bar association had said that he was “arrogant, lazy, (and) an ideologue.”
“There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful,” a bar association letter to the Senate Judiciary Committee stated.
How his presence and those of his fellow Trump appointees will affect the court over time remains to be seen. “It’s hard to say how the shift in the court would change the court’s history,” said Joanne Spalding, chief climate counsel and deputy legal director for the Sierra Club. “I don’t think we’ve seen enough out of the Trump appointees to predict the future.”
If the future holds a second Trump term and additional appointees, said Sean Hecht, a professor of environmental law at the UCLA School of Law, the court could become more hostile to environmental and climate issues than at any time in the past.
“It’s clear that after three and a half years this president has transformed the judiciary,” Hecht said. “Given another four years, that transformation could evolve in a way that will be no good for robust enforcement of our environmental laws.”