Trump’s success in appointing conservative judges has so far been no match for his team’s own ineptitude, the skill of the environmental bar and industry’s desire to work with the new administration.
President Joe Biden speaks in the State Dining Room of the White House on March 6, 2021, in Washington D.C. Credit: Oliver Contreras/For The Washington Post via Getty Images
By Marianne Lavelle, Inside Climate News
As the Biden administration begins the daunting job of rebuilding U.S. climate policy, it has gotten help from an unexpected, and perhaps unlikely, source—the federal courts.
In Biden’s first few weeks in office, federal judges scrapped the Trump administration’s weak power plant pollution regulation, its rule limiting science in environmental decision-making and a decision opening vast areas of the West to new mining.
The rulings show that although President Donald Trump left his mark on the federal courts with his record-breaking pace of judicial appointments, his influence has not been great enough to prevent federal judges from playing a part in dismantling his deregulatory legacy. And the series of decisions also allows the Biden administration to move forward with some confidence about its own ambitious regulatory agenda, as White House National Climate Adviser Gina McCarthy explained at a major energy industry conference last week.
“As time goes on, we realize how unsuccessful the prior administration was in actually rolling back good regulations,” McCarthy said in a virtual discussion session at CERAWeek by IHS Markit, an annual conclave of top oil, gas and utility executives. “In the courts, even with the new appointees under the Trump administration as judges, we still won over and over and over again, because there is a law in our country. And when you put on that black robe, you tend to want to do your job.”
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The Biden team’s work on writing new climate regulations begins in earnest soon, with the Senate slated to vote Wednesday on his nomination of Michael Regan, North Carolina’s top environmental official, to head the Environmental Protection Agency. Another point person in executing the Biden climate agenda, Rep. Deb Haaland, (D-N.M.), cleared a Senate committee last week and is on her way to confirmation as the first Native American person to head the Interior Department.
Regan, Haaland and the rest of the Biden climate team may get less help from the federal courts as time goes on. Legal scholars expect that Trump-appointed judges will be skeptical of aggressive government action on climate without explicit authority from Congress, and Trump appointees now occupy one-third of the seats on the appellate bench, including three on the Supreme Court.
But for now, a confluence of factors have given the Biden administration some early legal wins—including the savvy of environmental group litigators, the desire of industry to strike a cooperative stance with the new administration and the legal missteps of the Trump administration.
“We saw that many actions by the Trump administration were a deliberate and illegal effort to permanently limit the ability of EPA to do its job protecting people and the environment,” said Ben Levitan, a senior attorney at the Environmental Defense Fund, one of the groups that have spearheaded the recent challenges. “These decisions clear the way for the Biden-Harris team to turn to the critically important work ahead.”
Trump’s ‘Tortured’ Misreading of the Clean Air Act
The biggest break for the Biden team thus far came at the Ben Levitan, where a three-judge panel issued a decision to vacate the Trump administration’s rollback of President Barack Obama’s signature climate policy, its Clean Power Plan. The day before Inauguration Day, the judges excoriated the Trump administration for designing a toothless regulation on power plant greenhouse gas pollution based on what it said were “a tortured series of misreadings” of the Clean Air Act.
Trump’s EPA argued it had no authority to set standards that encourage steps like switching from coal to natural gas or renewable energy to cut carbon emissions. Instead, the Trump EPA said it could only mandate tweaks like efficiency improvements at individual coal plants (while not addressing natural gas plants at all.) But in reality, such improvements do little to slash carbon; the only commercial technology for achieving large cuts in power plant carbon emissions is to switch to cleaner fuels. As a result, the Trump “Affordable Clean Energy” rule would have curbed greenhouse gas emissions from power plants less than 1 percent.
The three-judge panel ruled that the Trump power plant rule “hinged on a fundamental misconstruction of … the Clean Air Act.” Judge Justin Walker, a Trump appointee on the panel, dissented on the legal reasoning but joined in the judgement with two Obama appointees, Judges Patricia Millett and Cornelia Pillard.
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