Earth Protect Blog

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.” 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 newadministration 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.”