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The Climate 202

Environmental groups aren't pushing Supreme Court picks. Here's why.

The Climate 202

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Welcome to The Climate 202 and happy Friday!

🚨 A federal judge last night threw out the Biden administration’s massive oil and gas lease sale in the Gulf of Mexico. More on that below. But first:

One of Biden's shortlist candidates has a lengthy environmental record

One of the judges on the shortlist to be President Biden's Supreme Court nominee has telegraphed her thinking on environmental law more than the others.

But prominent environmental groups are not pushing Biden to select certain candidates over others, according to interviews with advocates and lawyers at five of the biggest green groups in the country. 

“We are not floating names since Biden has already made clear in general terms who he will nominate, and the list of front-runners is very clear,” Brett Hartl, government affairs director at the Center for Biological Diversity, told The Climate 202. “At the end of the day, it is the president’s prerogative.”

After President Biden pledged yesterday to nominate a Black woman to the Supreme Court by the end of February, the nation's attention turned to Black female jurists who could succeed Justice Stephen G. Breyer after his retirement.

One of them, Ketanji Brown Jackson, who was confirmed last year to the U.S. Court of Appeals for the D.C. Circuit, handed down multiple rulings on environmental cases as a judge on the U.S. District Court for the District of Columbia from 2013 to 2021. 

  • In 2015, she rejected a lawsuit over the U.S. Forest Service's planning rule for national forests and grasslands brought by logging, grazing and off-highway vehicle groups. The decision was a victory for conservationists and the Obama administration.
  • Meanwhile, in 2019, Jackson ruled that green groups could not challenge the Department of Homeland Security's waiver of environmental laws such as the Endangered Species Act to speed the construction of Donald Trump's border wall.

Two other candidates on the shortlist have given much less indication of how they'd rule on environmental issues. They include Leondra Kruger, a California Supreme Court justice, and J. Michelle Childs, a federal judge and a favorite of House Majority Whip James E. Clyburn (D-S.C.).

But instead of floating certain names, green groups' strategy is to emphasize their ideal qualities in a nominee, such as respect for the nation's bedrock environmental laws. Once Biden announces his selection, the groups plan to coalesce around that person ahead of what could be a contentious confirmation battle in the 50-50 Senate. It's not an unusual strategy for the environmental groups, which have typically stayed out of deliberations over Supreme Court picks, despite being highly active in endorsing candidates for Congress.

What they will do

Environmental groups plan to highlight the high stakes of Feb. 28 oral arguments in West Virginia v. EPA, a challenge to the Environmental Protection Agency's authority under the Clean Air Act to regulate greenhouse gas emissions from power plants. Climate activists fear that the 6-3 conservative majority on the Supreme Court could issue a decision that restricts the agency's authority to tackle a leading contributor to climate change.

The groups also plan to applaud Biden's commitment to diversity. Doug Lindner, advocacy director for judiciary and democracy at the League of Conservation Voters, said that while it is “a little early” to discuss specific candidates, the group commends Biden for following through on his campaign promise to nominate the first Black woman to the nation's highest court.

“Black communities are on the front line of many of the dangers to both our environment and our democracy, and have been historically underrepresented in a lot of ways, but especially in the judiciary,” Lindner said.

Jamal Raad, executive director of Evergreen Action, a climate advocacy group with close ties to the White House that previously pushed for Biden to nominate Sarah Bloom Raskin as the Federal Reserve's top banking cop, declined to discuss specific candidates. But he rejected the notion that the pick won't matter for the climate because liberal justices will still be in the minority.

“This person will be one of the nine most powerful people on Earth,” Raad said. “Of course who it is matters. And we need to make sure that for decades to come, they will be serving the interests of working people and our planet and not the most powerful special interests.”

Leslie Fields, the Sierra Club's national director of policy, advocacy and legal, and Mitch Bernard, chief counsel at the Natural Resources Defense Council, both emphasized the importance of a nominee who recognizes the federal government's responsibility under the law to protect the environment and public health.

Click here to read Jackson's decision in the Forest Service case and here to read her opinion in the border wall case.

Climate in the courts

Judge throws out massive Gulf of Mexico lease sale

A federal judge on Thursday invalidated the largest offshore oil and gas lease sale in the nation’s history, ruling that the Biden administration violated federal law by relying on a seriously flawed analysis of the climate impact of drilling in the Gulf of Mexico, The Washington Post's Anna Phillips and your Climate 202 host report.

The decision, by the U.S. District Court for the District of Columbia, threw out 1.7 million acres of oil and gas leases that the Biden administration had not wanted to sell. Shortly after taking office, Biden suspended new oil and gas drilling on federal lands and waters. But after a Louisiana judge struck down the moratorium last summer, administration officials said they were forced to go through with the sale in November.

Judge Rudolph Contreras, a Barack Obama appointee, concluded that the Interior Department based its decision to hold on the sale on a flawed environmental analysis, completed under the Trump administration, that miscalculated the greenhouse gas emissions associated with future drilling. Interior spokeswoman Melissa Schwartz said the department was reviewing the ruling.

On the Hill

Rep. Jayapal says climate provisions in Build Back Better can get 50 votes

Rep. Pramila Jayapal (D-Wash.), chair of the Congressional Progressive Caucus, said yesterday that the climate provisions in the Build Back Better Act have been drafted with the input of holdout Sen. Joe Manchin III (D-W.Va.), ensuring that they can meet the 50-vote threshold in the Senate.

“I actually spoke to Senator Manchin — over several months I’ve been speaking to him — and the climate provisions, as they are crafted, are crafted with and by him, as well," Jayapal said during a “Policy and Pints” event hosted by Evergreen Action

Sen. Capito presses the EPA on small refinery exemptions

Sen. Shelley Moore Capito (R-W.Va.), ranking member on the Environment and Public Works Committee, yesterday led a letter to EPA Administrator Michael Regan ​​​​​​asking the agency to reconsider its denial of small refinery exemptions under the Renewable Fuel Standard.

"We are puzzled by the action EPA took in these proposals, including the unprecedented and drastic step to propose a blanket denial of all 65 outstanding small refinery hardship petitions at a time of increasing gasoline prices and several small refinery closures around the nation,” the senators wrote. 

Signers included Republican Sens. John Barrasso (Wyo.), Jim Inhofe (Okla.), Pat Toomey (Pa.) and Ted Cruz (Tex.). An EPA spokeswoman said in an email to The Climate 202 that the agency "will review and respond to the letter.”

Environmental justice

Biden's focus on environmental action led to a year of progress — and burnout

Just weeks before the first anniversary of Biden's executive order on environmental justice, one of the country's leading experts on the topic resigned from the White House because of pressures on the job, The Post's Darryl Fears reports.

Cecelia Martinez told The Post that burnout played a role in her decision to leave her post as senior director of environmental justice at the White House Council on Environmental Quality.

“I got dangerously close to burnout,” Martinez said in a recent interview from her home in New Mexico. “Literally it was nonstop, seven days a week, all day long. In the midst of just some personal family issues I had, I literally had to rearrange my stepfather’s funeral around … meetings. It was just an incredible pace.”

Pressure points

Trump EPA chief says Virginia's clean energy goals will be ‘hard to meet’

Andrew Wheeler, who led the EPA under Trump and was nominated to be Virginia's natural resources secretary by Gov. Glenn Youngkin (R), questioned the feasibility of the state's clean energy targets in an interview with Politico Pro's Joshua Siegel.

“The targets are going to be very hard to meet, not just in Virginia but anywhere in the country,” Wheeler said. “We are going to be relying on fossil fuels for quite a while for baseload generation, barring some technology advances.”

Wheeler, whose nomination has been criticized by climate activists, was referring to the Virginia Clean Economy Act, which requires most coal-fired power plants to close by the end of 2024 and mandates that major utilities become carbon-free by 2050.

“I am not opposed to renewables,” he added. “We haven’t as a society or government looked at the negative consequences of renewables, either.”

Corporate commitments

BP hires ‘renewables rockstar’ to lead offshore wind business

The British oil and gas giant BP yesterday announced the appointment of Matthias Bausenwein as senior vice president of offshore wind. Bausenwein, who most recently served as a senior executive at the Danish energy company Ørsted, is a “renewables rockstar,” BP CEO Bernard Looney wrote in a LinkedIn post

BP, one of the world's largest oil and gas companies, has set a goal of deploying 20 gigawatts of renewable energy capacity by 2025 and 50 gigawatts by 2030. 


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