3 questions to ask about any judicial nominee.
If you care about clean air and water, and if you care about climate change and public health, then you need to care about the integrity of our federal courts. Here’s why.
Environmental laws like the Clean Air Act, Clean Water Act, and Safe Drinking Water Act require the federal government to implement our rights to a stable climate, clean air and clean water. We need judges who understand this basic principle, and who we can rely on to enforce the law, respect the science, and keep the courthouse doors open to public interest litigants. And we need these judges now, because the climate crisis is existential and escalating fast, and because we’ve waited too long to address environmental injustice. We’re confident that Judge Ketanji Brown Jackson is such a judge, and that she will bring a much-needed perspective to one of our democracy’s most critical institutions.
Currently, our Supreme Court is dominated by six highly conservative justices who are going out of their way to take cases brought by plaintiffs who question the federal government’s authority to address environmental problems. What’s worse, these justices are deciding cases based on novel doctrines and have signaled that they are willing to disregard the court’s prior precedents as part of a deregulatory policy agenda.
Judge Jackson, by contrast, has a proven record of following settled law and prioritizing facts, not politics, when making decisions. When Earthjustice reviewed her record, what we found is that she digs into the science in the record before her and into the complexities of administrative law. She doesn’t always rule for environmental groups or public interest lawyers in environmental cases, but our clients always get a fair shake from her: She takes the time to understand the law, digs into the science enough to make sure that agencies are doing their job without going so far as to second-guess their expertise. And she recognizes the importance of public participation.
In part because environmental rights are not (or shouldn’t be) a partisan issue, we don’t have an easy litmus test to tell whether a judicial nominee will be “good for the environment.” But these are the questions—below—that we asked ourselves in evaluating Judge Jackson, and that the Biden administration should ask as it looks for lower court judges who will support a sane environmental and climate agenda. There’s also a bonus question “X factor” question that the administration should ask to separate potentially good judges from potentially extraordinary ones.
Does the candidate recognize that the government has a responsibility to protect the environment, public health, and public lands for all people?
What you do on your patch of land affects what I can do with mine, what you discharge into the air and the water affects my health, and your energy generation and ecosystem impacts all affect me. The federal government must make consistent national rules to regulate these things and enforce those rules evenhandedly, everywhere. A good judge isn’t hostile to industry. On the other hand, good judges believe that the Constitution gives Congress broad and deep authority to regulate industries in the public interest—and that polluting industries have a profit motive to challenge and undermine that authority. They also recognize that for government to work, Congress has to be able to delegate to the executive branch the complex and technical task of issuing enabling regulations. And when they try to understand what Congress was trying to achieve, good judges are willing to consider any evidence, not just evidence that supports their personal policy preferences.
Can the nominee tell the difference between science and politics?
Good science and careful factfinding beget good environmental policy. In fact, one of our most effective environmental laws — the National Environmental Policy Act (signed by Richard Nixon) — doesn’t actually require the government to protect the environment. Instead, it requires the government to consider the environmental impacts of decisions, and to make those decisions based on facts, science, and public input. Not politics. This is why so many of our environmental laws require federal regulators to build a record of the work they did in reaching at their decisions. Good judges know how to roll up their sleeves and review the agency’s work for factual and legal integrity, without yielding to the temptation to replace the agency’s policy judgments with their own.
Does the candidate understand that individuals need access to courts to hold government and industry accountable?
Strong environmental laws aren’t enough on their own. People need to be able to hold industry accountable for following those laws, and, when necessary, sue the government itself for failing to do its job. Polluting industries and lax regulators try to escape accountability by twisting justiciability doctrines (the standards that determine what kind of legal issues a court can decide) into bars on the courthouse doors. We need judges who recognize that access to the courts is a basic right no different than access to the ballot box.
So what about Judge Jackson?
We’ve examined Judge Jackson’s environmental and administrative law record carefully. What we found is that she’s not result-oriented; sometimes she sides with plaintiff groups and sometimes with the governmental agencies. In other words, she decides cases one at a time based on the specifics of each case. That’s a good thing, and we need more of it in our federal judiciary.
Here’s an example. In Watervale Marine Co. v. DHS, Judge Jackson upheld the Coast Guard’s authority to detain and impose non-financial conditions of release on ships found to have improperly disposed of oil waste in violation of a federal anti-pollution law. The U.S. Coast Guard detained four foreign container ships on suspicion of violating the Act to Prevent Pollution from Ships (APPS), a federal law intended “to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances.”
And in Government of Guam v. United States, where we also saw a good environmental outcome, Jackson allowed Guam to move forward with a lawsuit against the U.S. Navy, which had created a polluting landfill on the island that was contaminating a nearby river and was refusing to pay cleanup costs. Though the D.C. Circuit Court reversed her decision on this case, the U.S. Supreme Court ultimately unanimously agreed with her and allowed Guam to move forward with its suit.
Does the candidate have … the X Factor?
As I said, while Earthjustice believes that any good judge must display the three characteristics we describe above, the best have one more: they know how to influence the law far beyond the scope of their own individual decisions. Appellate judges who sit on panels need to be able to persuade colleagues through thoughtful behind-the-scenes reasoning and by building relationships across philosophical divides. District court judges should be able to write opinions that persuade appellate judges who do not generally share their point of view. And the best judges know how to play the long game by writing eloquent opinions that shift legal doctrine and provide a roadmap to a better future.
Does Judge Jackson have “it”? Time will tell. Lower court judges “grow into” their voice as a Justice over years, but we believe that Jackson’s record and professional experience give her an ideal start.
This blog was originally published in March 2021. It was updated in March 2022.
Sam Sankar (@sambhavsankar) is Earthjustice’s Senior Vice President for Programs. Sam leads our Program Leadership Team, which develops Earthjustice’s strategy for carrying out our mission through litigation, lobbying and regulatory advocacy, and communications.
Earthjustice’s Washington, D.C., office works at the federal level to prevent air and water pollution, combat climate change, and protect natural areas. We also work with communities in the Mid-Atlantic region and elsewhere to address severe local environmental health problems, including exposures to dangerous air contaminants in toxic hot spots, sewage backups and overflows, chemical disasters, and contamination of drinking water. The D.C. office has been in operation since 1978.