(This is part one of two parts. Part 1 examines how the courts are changing and public lands conservationists must rely less on litigation to achieve our goals. Part 2 will explain that public lands conservationists must rely more Congress enacting good legislation to achieve our goals.)
The courts, they are a-changin’. The public lands conservation community should not expect judicial victories in the future comparable to those of times past. The convergence of a Republican president, a Republican Senate, retiring judges, and a conservative movement that has outflanked the liberal movement is quickly and effectively remaking the judiciary for a generation. Such does not bode well for environmental protection, including for federal public lands, that rely on federal administrative regulation that the courts may increasingly refuse to enforce or even overturn. What’s called for is a new strategy for environmental protection: getting Congress to enact better laws.
Trumpacking the Courts
The Trump administration, as is its right, is packing the federal courts, not just the Supreme Court, with judges of its choosing from the right. Of the 167 seats on the nation’s thirteen federal appeals courts, Trump nominees now warm one out of every seven. Ten more appeals court nominees are pending. There will be more. At the district court level, Trump isn’t getting as many opportunities, but he’s still appointed thirty-nine judges so far in ninety-four federal judicial districts, and he’ll be able to nominate many more.
This Trumpacking is being enabled by changing practices in the Senate. Under the Constitution, the Senate must approve presidential nominees for judicial posts. It was long the practice of the Judiciary Committee to not hold a hearing on the nomination of a district court judge if one or both senators from the state were opposed to the individual. No longer.
In addition, before 2013 the practice of the Senate was to require that a presidential nominee to a district or appeals court position be confirmed by a minimum of three-fifths of senators present (a supermajority, usually sixty). Then Senate Majority Leader Harry Reid (D-NV) exercised the so-called nuclear option—meaning he changed the rules by a parliamentary maneuver so that from then on a simple majority of fifty-one votes could confirm a nominee—because the then Republican minority was blocking confirmation votes on judicial and administrative nominees by President Obama. Then Minority Leader Mitch McConnell (R-KY) warned Reid he would rue the day. Reid did leave the three-fifths confirmation rule for Supreme Court justices.
Fast forward to 2016 when Democrat Obama nominated DC appeals court judge Merrick Garland to the Supreme Court. Now Majority Leader McConnell refused to bring the nomination to a vote, on a longshot bet that the next president would be a Republican. He won the bet. President Trump nominated Neil Gorsuch. When enough minority Democrats would oppose, denying the necessary sixty votes, McConnell went nuclear on the confirmation of justices.
Today, the Senate is poised to confirm Trump nominee Brett Kavanaugh to the Supreme Court over the objections of most Democrats. According to the Center for Biological Diversity, in his twelve years on the appeals court bench, Judge Kavanaugh voted against wildlife 95 percent of the time. In contrast, Obama nominee Garland, in his twenty years on the same appeals court, ruled in favor of wildlife 54 percent of the time. It’s probably not the case that Kavanaugh hates Bambi and all other wildlife, but rather he disdains the methods Congress has authorized federal agencies to protect wildlife: regulations.
Trump may well nominate other justices who retire or die in office. Liberal justice Ruth Bader Ginsburg is eighty-five (keep doing those twenty daily pushups, RBG!) and Justice Stephen Bryer is eighty.
Relying on the courts to enforce environmental protection regulations has long been complicated by “Chevron deference,” shorthand for a legal standard first set forth by the Supreme Court in 1984 in a case entitled “Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.” pertaining to the Clean Air Act but now widely applied. In a fact battle between the experts, the courts defer to the agency, which is considered an expert. Even if the agency doesn’t follow the best available science or if it chooses an action more harmful to the environment than an alternative course—even if the agency has a conflict of interest in that it views itself with the mission of logging forests, damming streams, or what have you—the courts defer to the agency because it is the expert. Many public lands conservation cases are lost, or not even brought, because of Chevron deference.
Yet anti-environment forces (a.k.a. forces of darkness, or FODs) hate Chevron deference for another reason: it allows agencies to issue regulations that have not been expresslyauthorized by Congress. Under Chevron deference, if the authority granted by Congress is implicit, a court may not review whether that agency’s regulation or action was really consistent with the statute, only whether the agency interpretation is permissible (interpreted to be rational or reasonable). The FODs seek to overturn Chevron deference, arguing that it is an unconstitutional delegation of legislative power to the executive branch. In general, FODs dislike regulation.
If the Supreme Court rolls back Chevron deference, the executive branch will have less authority to issue regulations (perhaps good under Trump, but perhaps bad later under another president), especially if Congress hasn’t expressly authorized the agency to act in that subject area.
Part 2 will discuss how public lands conservationists must rely more on Congress, as we rely less on the courts to achieve our goals.