In Conversation
The 2024 Election: Outcomes and The Work Ahead
“Our work will be very intense over the next couple of years, but we are ready.”
In the aftermath of the 2024 election, Abigail Dillen, President of Earthjustice, discussed the election outcomes and how they will affect Earthjustice’s litigation, advocacy, and political work.
Abigail was joined by Sam Sankar, Senior Vice President of Programs, Raúl García, Vice President of Policy & Legislation, and Yaheiry Mora, Political Director of Earthjustice Action, in a town hall with Earthjustice supporters. Read highlights of the discussion.
This conversation took place on Nov. 21, 2024. Earthjustice Action is Earthjustice’s 501(c)4 advocacy partner.
President, Earthjustice
Earthjustice is Prepared “While no one knows exactly what the future holds post-election, we are as ready as we can be. We’re in a time of enormous disruption in our country, and we know that the rule of law is being tested. ” Read more.
“At the same time, we still have a rule of law, and Earthjustice is built to defend it.
“We have been girding ourselves for the very real possibility that we would find ourselves in this position with a Trump presidency and a Republican-controlled Congress. We have taken seriously the campaign promises and the contents of Project 2025.
“We know that there will be an effort to increase oil and gas drilling at this late stage of our climate crisis and in the decade when we have to be making very fast change.
“We know that there will be attacks on the whole enterprise of environmental protection and on the agencies that are charged with protecting our air and water and innovating on climate and biodiversity solutions of the future.
“We know that there will be attacks on science and scientists.
“We know that there will be attacks on the laws that are our fundamental tools to protect people and this planet of ours.
“Many of these will be familiar battles that we know how to fight. And to the extent that we are seeing a new brand of lawlessness, we're ready to counter that and take it as it comes.”
Lessons From the First Trump Presidency “We learned many lessons from the first Trump presidency, and we’re taking them to heart.” Read more.
“We know it's going to be different than the last time around. I do think there will be a difference in audacity. The last time around, President-elect Trump was testing the boundaries of what he and his administration could do. I think the Trump administration team this time around will take the White House with a sense of a mandate, and instead of testing boundaries, will be attempting to crash through them.
“I'm sure you all saw the news that the floated appointment of Matt Gaetz as the head of the Department of Justice has been rejected. I want to focus on the fact that there are boundaries and they haven't all been crashed through yet. We will be part of the firewall to ensure that norms and boundaries stay in place.
“I don't over-read Project 2025 as a master plan that has buy-in from the president-elect and that has all the people behind it ready to execute. I don't think that's the case. But I do think there were — just as for us — many lessons learned by the president-elect and those close to him, and they will come in with a set of focused ideas and a sense of what they want to get done and how best to do it.
“I think there are real questions about their competency and executing on big ideas. The cabinet announcements that we've seen so far don't indicate a focus on governance and execution. They are consistent with a second round of chaos strategy. That has the ability to tear down institutions and slow us down at a time when we'll need the U.S. government to come back to a place of leadership on climate and all the environmental challenges we face.
“I don't want to underestimate the threat that a chaos strategy is. But in terms of being able to execute on some of the worst ideas that would durably set us back for years to come — we'll see.”
On the Composition of the Courts “From our standpoint, one of the biggest changes between 2016 and 2024 is the composition of the courts and the very aggressive agenda of the Supreme Court, which has fundamentally changed the landscape of administrative law, as it has signaled its willingness to attack our bedrock statutes.” Read more.
“The U.S. Supreme Court has blown a big hole through the Clean Water Act. We know that we're dealing with much more hostile courts.
“Some of the good news is that President Biden and Leader Schumer prioritized ensuring that we had fair judges appointed who understand the role of government and science. We will finish out the week [on Nov. 22] with nine new appointments, and that will continue over the coming weeks and months.
“We will find ourselves before some ideological judges who will not be inclined to rule for us. But we will also find ourselves before many fair judges and many judges who will want to exert their power to defend the rule of law and prevent abuse of power.
“We are ready for the prospect that we may lose more cases than we did the last time around, but we will also win many.”
We Will Not Cede Ground “There’s another difference between now and 2016: this is happening again, and I think it lends itself to greater fear and dread. We can be part of the counter to that because we are built to fight.” Read more.
“Because we have had so much support over the years, our capacity to do so is greater than ever. I can promise you: We are not going to cede any ground. At the very least, we are going to succeed in slowing down the bad ideas, the structural dismantling of environmental protections in this country.
“I don't believe that a majority of Americans voted for poisoned air and water and climate shocks that are displacing people, disrupting lives and livelihoods, and taking lives. I don't believe that's what a majority of people in this country voted for.
“We will ensure that people understand when a presidency is not caring about people and not meeting them where they are in the health and environmental crises of our time. When a Congress is not protecting them as only government can do.
“We will be making sure that people understand the stakes, and we will be making the public case for the protections that we need going forward.”
We Will Continue to Make Progress “We know that we can play a major role in holding the line, and we also know that's not enough.” Read more.
“We cannot lose four years in the race to avoid climate catastrophe, to address the extinction crisis for species, for our whole web of life, and for environmental injustice that is determining how people are living with health or not. We have to continue to make progress.
“In 2016, we invested very heavily in state-based work, and we doubled our capacity to work around the world. And so, we are far from starting from scratch. We are deeply rooted in states around the country — both red states that are benefiting from government spending, the Inflation Reduction Act and the clean energy revolution that is underway, and in states that will be the leaders and the bulwark against federal assaults and the incubators of the policies that we need. And I don't mean policies on paper — I mean, change on the ground. That work is well underway, and we will continue to ramp it up.
“As my good friend and partner and client, Manish Bapna, the president of NRDC, was saying on a call that I've just left to come here (he's fresh from [the UN climate conference in] Baku), and he was reporting that the mood there was also resolute. No one is giving up. The sense was that the United States is bigger than Washington, D.C., and the world is bigger than the United States.
“Earthjustice is going to play our role both to fend off the worst attacks emanating from Washington, D.C., and to harness all of the good things and all of the amazing leaders who we are privileged to represent to make progress across this big country, and to do whatever we can best do in venues all around the world to ensure that we're making progress over the next four years.
“Thank you for your support. We need it more than ever. We've built ourselves to be as ready as we can be and as strong as we can be in this moment. We will be tested, and we are being asked to do more. Your support will mean everything to us going forward.”
Senior VP of Programs, Earthjustice
Analysis of the Trump Administration’s Playbooks “What we have here is a very dog-eared copy of Project 2025. It’s dog-eared, because we’ve spent the last year looking at it closely.” Read more.
“One of the things you see in both Project 2025 and the other major Republican policy document, which is H.R. 1, the current energy bill that the House will be putting forward — or pieces of it — in the next Congress, is a wide mix of kinds of things that the Trump administration will want to do.
“In some cases, they are a very technical, specific mix (that really would only be able to be understood by some of the lawyers here) that have significant implications but are not terribly publicly salient. Then there are others that are real chaos inducers — the proposals to move staff at various agencies and to undo programs entirely. And then there's a third that involve congressional action that would require some kind of legislation.
“It's quite a wide range. But the way I think about it, it breaks down into a couple of categories:
- There's the kinds of change that they'll have to use Congress to make. That is to say, they'll need the House, the Senate, and the president to actually sign it into law.
- Another category is the traditional administrative rollbacks. This is when the Trump administration is going to be using the traditional tools of regulatory progress to undo regulatory progress.
- Another area is the completely unprecedented actions that the Trump administration has promised — things like mass layoffs or complete decisions to not enforce any laws whatsoever.
“In each of these kinds of cases, we're going to have different responsive strategies. In all of the administrative things the president-elect wants to do — the regulations he’ll want to change — these need to be done with the traditional machinery of administrative law.”
On the Changing Court Landscape and Judicial Appointments “The last time around, among the lawsuits filed against the Trump administration, in 109 of those cases, the Trump administration rule is completely gone. In another 35, we're still fighting. And, in 17, the rule is in effect, but it's not causing damage.” Read more.
“This is what it means when we go after the Trump administration rulemaking agenda.
“In the cases where we've had resolution, it's an 85% win rate. That is the litigation attack against the Trump administration's affirmative regulatory agenda looked like. As Abbie mentioned, we're going to be facing a different kind of court landscape as we do this.
“Most of these fights against the Trump administration's regulatory agenda and actions — on public lands and all of their traditional executive branch work — are going to happen in federal court. And the federal court composition is super important.
“The good news is the Biden administration has really prioritized judges, thanks in part to the work of Earthjustice's Policy and Legislation team. While the U.S. Supreme Court is a 6-to-3 balance, the Biden administration has made real significant progress in rebalancing the Circuit Courts, and even more in the District Courts.
“The Biden administration is going to match the historic pace of the Trump administration’s judicial confirmations and rebalance the courts.
“What does that look like for us on the ground? The Circuit Courts are the courts of appeal. Most work gets done in District Courts. But the definitive legal interpretations tend to happen in the courts of appeals. And this is what those various circuits look like:
- Certain areas of the country, like Texas and Louisiana which are dominated by the Fifth Circuit Court of Appeals, or North Dakota which is dominated by the Eighth Circuit Court of Appeals, have very conservative judges.
- On the other hand, a lot of the courts where we litigate, notably the D.C. Circuit, remain quite favorable to us.
“So we are going to be able to make a lot of progress. And importantly, we're going to have plenty of instances where we have one or more Democratic-appointed judges on the bench.
“In addition, I want to make clear that at least in the first Trump administration, many of those Republican-appointed judges are people who we've successfully advocated in front of. I'm quite optimistic about our ability to make significant progress in the courts.
“There's going to be a lot of unprecedented actions by the Trump administration — things we can't even really anticipate.
- Some of those things we're going to be able to fight directly against.
- And some of those things we're going to have to be using the power of our pens and our communications team to make sure that the public understands both what's happening and the real impact of what's happening. And that's something that our lawyers are extremely good at.
“A lot of times the things that are happening are quite technical, and people don't understand how it's going to land in their daily lives. We've put a lot of emphasis on making sure we communicate that clearly.”
Progress Outside the Federal Arena: State Judicial Dockets and Utility Commissions “There has been a change, both in volume and in character, of the kind of litigation and advocacy work that we do.” Read more.
“Six years ago, in 2018, a majority of our work was happening in the federal courts.
“Six years later, we've expanded substantially our work in the federal courts, because we've grown thanks to your support. But we've also greatly expanded the work we've done in other venues. Very notably, our state administrative and judicial dockets have expanded substantially. And we have twice as much work happening in state utility commissions as we did six years ago.
“This represents an extraordinary investment, thanks to so many of you, for us to be able to make sure that we're making progress outside of the federal arena.
“To give you a sense of what that means:
- If you're not familiar with utility commissions, this is the place where state regulators decide where energy investments go on the ground. If you're a ratepayer paying for electricity or gas, it's often a state utility commission that is deciding whether the utility invests in new gas, or renewables, or is electrifying buildings, or supporting energy efficiency. Those decisions are made in forums that are not federal and that are very much open to influence from groups like ours, as long as you have the technical capacity to make the difference. That's an example of how we can make a lot of change at the nonfederal level.
- There's also state level litigation using things like state constitutions. We've had a recent important win in Hawaiʻi where we've been able to use the state constitution to drive major change in the transportation landscape.
- We've been able to use things like public trust doctrine, which are state legal doctrines that govern the way states have to manage their lands and natural resources. We're using those doctrines in places like Utah to try to change the way water rights regimes are run.
- And we've also used new laws that are coming up in places like New York, where they've passed the Climate Leadership and Community Protection Act, a landmark law that assures environmental justice and drives climate progress.
“By enforcing those laws at the state level, we can drive progress, even if the federal landscape is more challenging.
“With a Republican trifecta in Congress and in the White House, we're concerned about the legislative landscape. But one of the other areas where we've gotten a lot stronger in recent years is in our ability to lobby on the Hill.”
VP of Policy & Legislation, Earthjustice
On the 119th Congress “I lead a team of about 30 individuals who are constantly pounding the pavement in Congress and across several states in order for us to secure our laws, to protect our cases, and to improve the law when we have that chance.” Read more.
“I want to go over the political landscape that we will be facing over the next three years in Congress. It's no secret at this point that Republicans will be taking a majority — a trifecta, in fact. They will hold the White House; they will have a slight majority in the Senate; and they will also have a very, very slight majority in the House of Representatives.
“While they will be able to control the agenda, they do not have a guaranteed, blank check in order for them to do whatever they want.
“When we get into the next Congress, we know a couple of things they plan to do. They've been very upfront about it.
“Their entire playbook essentially boils down to two documents:
- H.R. 1 is where the substance lies. That was the bill that Republicans, when they took control of the House of Representatives about two years ago, said was the first big message that they wanted to send to the American people on how they address environmental protections and energy production in this country. It's a long list of really bad ideas that range from giving a blank check to oil and gas industries to drill wherever they want, including public lands; giving big handouts to mining industries; gutting the funding for climate and environmental justice investments that we were able to achieve in the Inflation Reduction Act; eroding EPA's safety standards, particularly that deal with public health; and a lot of other environmental laws that we use in order to show up in court, including the Endangered Species Act, National Environmental Policy Act, and many others.
- The second is Project 2025. It has a lot of substance to it but is also about how they want to change the power structures within government to allow them to have more control over decision-making, whether it's in the environment, education, or other big areas. It is important that we're confronting them there and protecting the integrity of our government and that it functions for the people.
“In the next Congress, in order to do this, January and February will be focused on several primary issues:
- The first one will be the debt limit. The United States will reach the height of its debt limit, and Congress will have to increase it in order to avoid a major global economic collapse. Republicans will try to attach things to the bill that are not germane at all to a debt limit argument.
- We also know that they will try to renew the Trump tax cuts. During his first term, then-President Trump said that he essentially gutted protections for the Arctic and allowed for oil and gas drilling in the Arctic in order to pay off a lot of the tax deductions that he gave many corporations. Those tax cuts are about to expire. He wants to renew them.
- Priority number three, and potentially the most dangerous one, is the reconciliation process. With reconciliation, only 51 votes are needed in the Senate to pass it. They will try to attach everything that they can to this process. There are some guardrails — in order for them to do this, they need to make sure that it is connected to a fiscal argument. There are policy items that they will not be able to do through this process, because they're not connected to a fiscal argument.
“Then there will be an onslaught of must-pass bills that follow through the remainder of the year. They include all sorts of big issues for the country, like how we handle our agricultural policy, to how we handle and how we invest in construction of water resource development in the country. Every step of the way, we're going to see a cycle of Republicans trying to attach their bad ideas to these must-pass bills.”
How Will Earthjustice Respond on Capitol Hill? “We have four goals.” Read more.
- Agency nominations: We need to hold accountable the heads of agencies that need to be confirmed in the Senate. We're seeing nominations where their credentials are simply lacking. We don't see people of the caliber who we have historically seen taking these kinds of positions. To resolve the most important crises — whether we're talking about climate or biodiversity or environmental health — we need to make sure that we have people who understand the issues leading these agencies. The nominees we've seen so far simply don't have that. We need to make sure that that comes to the front of the argument.
- Judicial confirmations: Once the Trump administration comes into office, they will have the ability to appoint judges. Those will also have to go through Senate confirmation. Here again, we're going to have to look at the credentials of the people who are nominated. By and large, history points to the fact that the administration will nominate judges who do not have the credentials and don't understand or respect the rule of law in order to carry out the types of rulings that impact our lives.
- Bedrock environmental laws: The third priority is to protect our bedrock environmental laws — the Clean Air Act, the Clean Water Act, what a lot of our regulations are based on and how we protect our health in this country. We have seen attack after attack. H.R. 1 is a list of bad ideas of how to exterminate protections. We want to make sure that these laws remain in play and that they remain strong.
- Inflation Reduction Act investments: And we want to protect Inflation Reduction Act investments. We made huge investments that passed through legislation during the Biden administration that really allowed us to invest in a clean energy future that we see for ourselves. And those investments are getting out there. But it's also very important to protect them as we move forward so that they're not undone.
Weaknesses and Opportunities in the House and Senate “There are two basic weaknesses within the Republican majorities in this Congress.” Read more.
“The first one is that the Senate still requires a filibuster in order to pass most legislation, which means they need 60 votes. There are 53 Republicans right now and 47 Democrats. That means to pass any piece of legislation that's not reconciliation, Republicans will need to peel off seven Democrats in order to do that. Even though the Democrats have the smaller numbers in the Senate, the minority is a lot more united.
“The weakness in the House — and we've seen this play out over the last two years — is that even though Republicans have the majority, it will shrink. They have the majority by four people right now. That will shrink down to about two or three once all the votes are counted.
“We have already seen that Speaker Johnson has been unable to govern and keep his caucus united to pass the must-pass pieces of legislation. Even when funding the government, he has had to rely on Democratic help. And that has forced him to pass clean bills.
“We have to recognize that Democrats do not come into these negotiations without leverage. Democrats will have a lot of leverage, and it's important for our team to be in there, making sure that we are telling them what to leverage and what is not up for compromise.
“Our work will be very intense over the next couple of years, but we are ready.
“We need to make sure that we keep Democrats united when it comes to votes, and to make sure that we're not losing Democrats, as the Republicans are putting tricky pieces of legislation forward.
“At the same time, we need to make sure that we use Congress as a megaphone to point out the injustices and lack of protections that we're going to see out of the upcoming administration. We will throw everything at this.
“I am so proud of the staff that we have. They are well versed in procedural mechanics within Congress. Our team is at the ready. They are eager for the fight, and they're ready to protect our communities.”
Political Director, Earthjustice Action
Electoral Engagement: Senate, Attorney General, and State Supreme Court Races “Earthjustice Action’s central focus are our courts, judges, and upholding the rule of law.” Read more.
“I came to this organization after a decade working in labor and immigrant rights, and I am excited to now join the fight for environmental justice and to help build our political power in this time when we're facing increased attacks to our environmental protections.
“We're facing these attacks from the corporate polluters, which have very well-funded super PACs. So on our end, we are intentionally building our defense strategy. We're doing this by increasing the capacity of Earthjustice Action – Earthjustice’s 501(c)4 to be an effective player in the races that are critical to advancing our work.
“For our electoral engagement, this means that we engage in U.S. Senate races, as U.S. senators confirm federal judges. At the state level, we plan to engage in attorneys general races, as their main role is to uphold the rule of law, and they have considerable power enforcing environmental laws. We're also looking at public utilities commission races, in the races where commissioners are elected. They regulate the energy providers and other utilities in the states.
“And we're also focusing on state Supreme Court races. They interpret state constitutions and determine our rights and freedoms. 95% of all cases are heard in state courts, impacting all aspects of our everyday life. Judicial races are becoming increasingly important for legal cases that we're all hearing about, involving critical issues such as reproductive rights, democracy, civil rights, and environmental protections.
“As an example, in states such as Montana, where Earthjustice has an office and staff, the state legislature can be hostile to issues we work on. Here, the state Supreme Court is the last lever of defense. Earthjustice litigators currently have two cases in this court to enforce the Montana constitutional right to a clean and healthful environment. Preserving this favorable majority — which follows the science and facts, upholds our country’s laws, and puts people over corporations and polluters — is critical. The outcome of these kind of races in state Supreme Court elections carry immense stakes for our mission.”
The 2024 Election Cycle “Through data-driven voter engagement strategies, we help voters understand that if they care about the environment, they must also care about who sits on our courts.” Read more.
“In this year’s election cycle, we engaged in both state Supreme Court races and U.S. Senate races in four states. The states are relevant to our long-term advocacy, and where we will continue to invest and engage — Montana, Michigan, Ohio, and Pennsylvania.
“We designed a program in these states to educate, persuade, and mobilize to the polls nearly 300,000 environmentally concerned voters. In our outreach, we conducted message testing, because we wanted to fine-tune the lens of the environment and courts, and to tailor our communications to our target voters in each one of our states. We spread this message through phone conversations, direct mail, as well as digital ads. This program was coordinated with the broader progressive coalition in these states. We did not do it alone.
“While we faced defeat in Ohio, we also have victories to celebrate. In Michigan, we expanded our favorable majority, with the election of two candidates to the state Supreme Court, Kyra Harris Bolden and Kimberly Thomas. We also defended U.S. Senate seats, by electing the now Senator-elect Elissa Slotkin in Michigan. In Montana, we helped elect Justice Katherine Bidegaray to the state Supreme Court.”
On Judicial Retention Races “As we look ahead of this work, building our capacity is now more important than ever. In 2025, we will be engaging in the Pennsylvania Supreme Court retention race.” Read more.
“Retention races before this time were very uneventful, because the incumbent judge ran unopposed. There’s no opposing candidate; it’s a yes or no vote on the incumbent. But the reality is that with the result of this year's elections and with the swing of the state of Pennsylvania, we anticipate that there's going to be strong opposition and anti-retention campaigns, led by conservative groups looking to unseat the three Democratic judges who are up for retention. The Pennsylvania Supreme Court has become a partisan race.
“Efforts will be focused on using this year's gains from Democratic strongholds to shift the balance of the courts. And the reality is that there's also precedent. This year, we saw typically uneventful retention races become political fights and successfully unseat sitting judges.
“Looking at 2026, besides the U.S. Senate races and the state Supreme Court races that we will be working on, we're also focused on defending the vulnerable Democratic attorneys general seats, in places like Arizona and Michigan. Michigan, specifically, has an open race and is expected to be highly contested, as well as the state Supreme Court race, that will also be happening in 2026.
“To do this, we continue to scale and to meet the growing number of attacks that are happening not only to our environment, but to our health, to the rule of law, and to our democracy. I am personally comforted and energized, because Earthjustice Action was built for this moment — it was created during the times of a Trump administration.
“We are ready for a time like this”
Q&A Session
Senior VP of Programs, Earthjustice
“We got a lot of great questions. One of the things that I love is just how sharp our supporters are. The questions are sophisticated.”
Q: Is it true that we don't need all that oil for energy independence?
“Yes. It's true, we don't need all that oil for energy independence. The U.S. is now the largest fossil fuel exporter in the world. As a result, a lot of what we're seeing from the Republican agenda is not about domestic energy. It's about export and profits.”
Q: Is Earthjustice working on Line 5 pipeline in Michigan?
Q: Can a recently appointed federal judge be removed if they were confirmed by the Senate?
“The answer is no, not without impeaching them (yes, the same process used to impeach a president).”
Q: Is Earthjustice going to work on defending national monuments like Bears Ears?
Q: Is Earthjustice working to preserve key data sets and bits of information from the agencies that the Trump administration might take down?
“Yes, absolutely. What a great question.”
Q: Does Earthjustice have state offices?
“Yes, Earthjustice has 15 offices. One of the great things about Earthjustice is how local and place-based our work is. We very much are engaged on the state level and that's what allows us to do a lot of that work that I showcased earlier.”
VP of Policy & Legislation, Earthjustice
Q: On the recent attempt to pass a law that allows organizations to be targeted as terrorist organizations and have their nonprofit status threatened. “We saw that piece of legislation (H.R. 9495) pass the House just this morning [Nov. 21, 2024].” Read more.
“We worked a lot on that piece of legislation, because although the broader piece of legislation is about terrorism, it does have a provision that would allow a president to come after the 501(c)3 status of any organization that would be deemed as a terrorist organization.
“While the bill passed the House, it is dead on arrival in the Senate. We have commitments from Senator Schumer about that.
“And the good aspect of this is that while this bill had a lot of Democratic support when it first came out, we were able to do a lot of education about what the bill actually did and the damage that could come from the next administration. And this time around, the support went from around 40+ Democrats supporting the bill to only 15 Democrats in the House of Representatives supporting the bill.
“We still have a lot of education to do, but that tells you the importance of the work of making sure that we're educating Congress. We'll continue to educate and leave it at a place where they won't be able to peel off enough Democrats in order to pass the bill out of both chambers.”
President, Earthjustice
Q: On getting information out to the public, to supporters, and to future voters. “Our tagline is “Because the earth needs a good lawyer.” But it also needs great advocates on the Hill and in statehouses, and it absolutely needs great communicators.” Read more.
“And, we have an incredible cadre of them at Earthjustice. We are reaching people who are inclined to hear from us on social media channels — Instagram, TikTok, X, any many more of us may be on Bluesky going forward, and more. All of those are places where you can find Earthjustice, and our followership there is increasing even more just in the past few weeks.
“We are also very much in constant communication with reporters who have beats on the courts and also on climate, the environment, energy, food systems. Whatever our work touches, we are in touch with and a resource for the press corps.
“You will often find us quoted, but you will also not see the background work that we do to make sure that stories are lifted up to the press corps. That's crucial, particularly now, as people need to understand the role that courts are playing in environmental damage. This is not something that people are accustomed to following and we need to build momentum either for the justices who are currently on the court to moderate what they're doing or to reform the court. I think our efforts so far have been really successful. The fact that so many listeners in this discussion knew about the Chevron case, for example. Sam Sankar and others at Earthjustice did an incredible job explaining the stakes of this issue and making sure that it was covered, in a term that also involved incredibly important issues in the United States beyond administrative law, which isn't always accessible to everyone.”
Senior VP of Programs, Earthjustice
Q: Concerns about the Supreme Court and what an organization like Earthjustice is able to do with a hostile 6-to-3 Supreme Court waiting in the wings for our litigation. “Number one, we've won cases in front of this Supreme Court.” Read more.
“We won a 6-3 case in front of the Supreme Court (although not constituted precisely the way it is right now).
“I also think that the Supreme Court is going to see itself in the crosshairs of public attention as we see the worst of the Trump administration's agenda brought before that court.
“We've also done a lot at Earthjustice to develop particular expertise in working in the appellate courts (the next level below the Supreme Court) in order to shape our cases in ways that we're winning so that the Supreme Court isn't interested in hearing us. We've made real efforts in tandem with some of the administrative agencies to “Supreme Court”-proof some of the administrative regulations that are coming out now.
“And, frankly, a lot of the game with the Supreme Court is recognizing how little work it can do.
“Once upon a time, 15 years ago, the Supreme Court was taking 200 cases a year. Now it's only taking just over 60. And that's at least in part, because every one of the cases they're taking is just enormously labor intensive for them and really draining on the court's capacity to be able to negotiate and deal with these cases.
“That means that the process of deciding which cases they take becomes really important, and the process of shaping which cases they take is something that is a specialty of Supreme Court lawyers. We have a couple of them, myself included, on staff who are able to do that kind of work. It's highly technical, highly specialized, and it can have huge results. This year, we succeeded in getting a series of key EPA regulations away from the court. The court did not stay them as it has stayed other regulations in the past.
“And that points to another factor, which is, I think that Justice Amy Coney Barrett and Chief Justice Roberts, and maybe even Justice Kavanaugh, recognize that the legitimacy of the court is very much on the line right now. And I hope we're going to see a moderation.”
President, Earthjustice
Q: How does Earthjustice deal with the Congressional Review Act (a way for Congress to overturn regulations) and ensure that an agency can't just come back and make them again without express approval from Congress? “With the help of some people in the Office of Information and Regulatory Affairs, there was a real push to get rules done so that the Congressional Review Act window would not hit.” Read more.
“The vast majority of gains that were made in the Biden administration are protected from that kind of challenge. And, it's thanks to folks who were inside the Biden administration and working just as hard as they could, and to people who helped build the evidentiary record and “Supreme Court”-proof all of those regulations.
“We'll see how we do, but we know that we've passed the first hurdle in Congress”
Q: This litigation is resource intensive, and I bet it's exhausting. Does Earthjustice have a deep bench of lawyers? Are there young lawyers coming up who can carry the baton from folks who've been here for decades? “The answer is absolutely yes. It has been one of the great privileges of my lifetime to watch the best and the brightest people throwing in with Earthjustice.” Read more.
“We don't have enough seats for all the people who want to come work here. I'm pleased to say when I say we're as strong as we've ever been, what I have in my mind is people.
“We just got back from a litigation training conference, sharpening all of our skills in advance of just this potential. There were 300 of us incredibly ferocious law nerds. And it's a wonderful fighting force that we've been able to bring to Earthjustice over the past many years, thanks in large part to your support.”
Senior VP of Programs, Earthjustice
Q: Does Earthjustice work with state governments? Do states work in coalition with each other? “Absolutely. Yes, and yes. Many of the states that are for climate and environmental progress are part of coalitions. They work together, and they share notes. They share legal strategies, and they coordinate coalitions and litigation. We are deeply connected with those groups.” Read more.
“This is important because the perspectives of states and the perspectives of environmental groups can be different and complementary in much the same way as the perspectives of states and industry groups can be complementary.
“We have different kinds of advocacy strategies and different abilities to communicate. When we work together, we can be complementary on that.”
Q: On the ability of the federal government to stymie state progress, for example, through arguing about preemption. “The legal concept of preemption is simply that when there is a federal law in an area, or a federal law mandates a certain result, state laws that are in conflict with that federal law have to be set aside.” Read more.
“A classic example is if a federal law mandated that all stoves be gas stoves, and the state said they should all be electric. Well, guess what? The federal law would win.
“This is a very fertile area, and one where there's an interesting paradox. The incoming administration wants to have a federal government and a set of federal laws that don't mean much, that don't have much strength.
“And to the extent they're arguing that, they're also arguing away from a preemption argument. In order to argue that these state laws are preempted, they have to argue for a robust kind of federal law, which puts them in a bit of a bind.
“It is an area that we work on, particularly in the electrification area where many fossil fuel interests are trying to stymie a move to clean energy, to cleaner appliances, and to EVs.”
President, Earthjustice
“I want to insert one more vein of hope: For all the right reasons, we're focused on the results of the presidential election and who controls Congress. But, across states and across cities, the election results actually reinforce that the issues that matter to Earthjustice and to everyone on this call are resonating with people.
“We have more opportunities at the local and state level than we had going into this election. I do want everyone to keep that in mind.
“My experience doing this work over the last 25 years is that once you have something, for example, a clean energy industry that's taking off, once you have protections that people can feel and see — for clean water, for conservation — it's really hard to claw it away. And it's very unpopular to do so.
“We're in for a really intense series of years, but we have opportunities. We're not backing down.
“We are going to meet people where they are. And that is in a crossroads not only for our country, but our planet. This work is more important than ever, and I know that we are going to make progress.”
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This text is edited and condensed from an audio recording. It may not be in its final form and may be updated or revised in the future.