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Why judicial appointments by the next president are important to climate change law


In principle, judges have no role over policies. They're just supposed to interpret the law. But the way they interpret the law has a big effect over policy, including and especially policies on climate. NPR's Nathan Rott reports.

NATHAN ROTT, BYLINE: Here's something to keep in mind the next time you see a president - really, any president - announce some big, bold environmental regulation.

LISA HEINZERLING: Basically, any environmental rule of any magnitude is challenged in the courts.

ROTT: Lisa Heinzerling is a law professor at Georgetown University. And before that, she worked at the Environmental Protection Agency under former President Barack Obama. So she knows, intimately, that when it comes to regulation on climate, water, air or wildlife, regardless of who is president...

HEINZERLING: The courts have the last word.

ROTT: And most often, not the court you'd think.

HEINZERLING: The Supreme Court decides maybe 60 decisions in a year.

ROTT: The other thousands of decisions, Heinzerling says, get made at the federal district and appellate court levels - the lower courts - which, like the Supreme Court, are presided over by judges appointed by the president. DJ Gerken is the president and executive director of the Southern Environmental Law Center.

DJ GERKEN: President Trump appointed something like 234 federal judges. President Biden has already up to 200. That's not new.

ROTT: What is new, Gerken says...

GERKEN: Is the emphasis on kind of a partisan take rather than qualifications and experience.

ROTT: As a candidate and president, Trump has been very open about what he prefers in a judge. He wants them to be conservative, and he wants them to be young so they serve for a long time.

GERKEN: I'm not so much worried about the political background of judges. I do think we need a Supreme Court, appellate courts, trial courts that respect the law and respect facts and avoid this kind of activist bent that, you know, as a candidate, Mr. Trump championed and, as a president, he sought out.

ROTT: An academic study of Trump's judicial appointments in his first term published last year found that complaints that his judges were underqualified didn't quite pass the sniff test, but it did find that they were much more likely than other appointees to have religious affiliations or to be a member of the conservative legal group the Federalist Society. That includes Trump's three Supreme Court appointees, which gave the court a conservative majority for years to come. Damien Schiff is a senior attorney at the Pacific Legal Foundation, a libertarian law firm.

DAMIEN SCHIFF: Regardless of partisan considerations, I think there's definitely an increased amount of judicial skepticism across the board.

ROTT: A skepticism evidenced in the Supreme Court's recent ruling that ended a 40-year precedent, the so-called Chevron doctrine that instructed courts to defer to scientific and other expertise at federal agencies when laws made by Congress aren't crystal clear. The decision gives more power to the courts and, environmental groups and legal experts say, will hurt agencies' ability to deal with emerging environmental problems like climate change. Schiff says it will help groups on the left as much as it will help groups on the right.

SCHIFF: I think there'll be a mood shift to make it a little easier for private parties to try to vindicate their rights against government entities.

ROTT: Erik Schlenker-Goodrich, the executive director of the Western Environmental Law Center, disagrees. He calls the court's decision a power grab.

ERIK SCHLENKER-GOODRICH: They're essentially saying that Congress needs to speak absolutely clearly about something, and that sounds sort of good at one level, but it really hamstrings the effectiveness of government to account for emerging problems. That very much includes climate change and the climate crisis.

ROTT: To what degree remains to be seen.

Nathan Rott, NPR News.

(SOUNDBITE OF BEAMER'S "SPELLBOUNDS") Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nathan Rott is a correspondent on NPR's National Desk, where he focuses on environment issues and the American West.