src="https://www.facebook.com/tr?id=2804137903007331&ev=PageView&noscript=1" />

The Climate Needs a Balanced Judiciary

A smoky sunset is seen behind the Alameda County Superior Courthouse in Oakland, California, on September 14, 2020.

As the world continues to grapple with the climate crisis, the U.S. federal courts are set to play a key role in efforts to protect and improve the environment in the years ahead. In 2017, 654 climate change cases were brought in the United States; within three years, that number nearly doubled, to approximately 1,200 cases filed. To best evaluate these claims, the United States needs a balanced judiciary made up of judges from a wide range of legal backgrounds.

Unfortunately, despite recent gains in professional diversity on the bench, not one current appellate judge has spent any time with a nonprofit explicitly dedicated to environmental work. Government experience advancing climate protections is also stunningly rare. This lack of experience is even more troubling considering that nearly 90 percent of current active appellate judges worked in private practice at some point in their careers; and much of this experience was spent representing the interests of those within industries that significantly contribute to environmental harms and climate disinformation.

These statistics are not meant to demonize lawyers from such backgrounds; they simply demonstrate a clear opportunity to improve judicial decision-making by ensuring that a wider range of environmental expertise exists within the judiciary. Moving forward, it will be critical to appoint judges with experience advocating for the protection of natural resources and communities harmed by climate change, as opposed to more individuals with experience protecting the interests of industry.

Environmental expertise among appellate judges

Professional diversity is lacking at all levels of the federal bench, from the district-level trial courts up through the Supreme Court. For instance, while two-thirds of the Supreme Court have experience in private practice, not one sitting justice has worked for a nonprofit civil rights or legal aid organization; nor do any of the current justices have public defense experience.

The below analysis, however, focuses on the career experience of appellate judges.* Given the extremely small number of cases the Supreme Court hears, the U.S. circuit courts are most individuals’ last chance at justice. A previous study by the Center for American Progress examined the sectors in which appellate bench appointees spent the majority of their careers, demonstrating the severe extent to which the bench is dominated by former corporate law partners and federal prosecutors.

The lack of judges from communities of color

While outside the scope of the current analysis, it is important to note that communities of color experience the most significant harms stemming from climate change and the burning of fossil fuels. Unfortunately, individuals from such communities are severely underrepresented on the bench, compounding the issues that arise from judges’ lack of holistic environmental professional experience.

Even when one considers the entirety of each appellate judge’s experience—regardless of the time spent in each position—the lack of professional diversity is stark; in regard to environmental experience, it is nearly nonexistent.

Nonprofit environmental law organizations

Not one appellate judge lists any work experience with a major nonprofit organization explicitly focused on environmental rights and engaged in litigation—for example, the Natural Resources Defense Council, Sierra Club, or Earthjustice.

This shortcoming is significant but also unsurprising given the current state of the bench. Only a handful of individuals currently serving at the appellate level list any formal professional experience working for nonprofit civil rights organizations engaged in impact litigation. For example, D.C. Circuit Court Judge David S. Tatel—who recently announced his intent to take senior status—served in leadership positions at the Chicago Lawyers’ Committee for Civil Rights Under Law, and his D.C. Circuit Court colleague Judge Cornelia Pillard spent time at both the American Civil Liberties Union (ACLU) and the NAACP. Meanwhile, Judge Luis Felipe Restrepo of the 3rd U.S. Circuit Court of Appeals worked as a law clerk with the ACLU. And finally, while distinct from the civil rights experience noted above, Judge Kyle Duncan of the 5th U.S. Circuit Court of Appeals worked for the conservative nonprofit the Becket Fund for Religious Liberty.

While these organizations work on a variety of matters and cut across the ideological spectrum, none of these judges noted a specialization in climate- or environmental-related matters during their confirmation processes.

Government-focused environmental experience

Among appellate judges who served in government positions, there is, once again, a clear dearth of environmental expertise aimed at advancing climate protections. While many appellate judges, such those who worked in state government or as Senate or White House aides, previously held positions that may generally have touched on environmental matters, very few demonstrate any particular specialization practicing within environmental law.

Underscoring this point, not one appellate judge has ever worked for the U.S. Environmental Protection Agency. Moreover, CAP’s analysis finds that, overall, only a small fraction of appellate judges have held any government jobs within divisions explicitly focused on environmental matters.

Of the seven judges identified with titles indicating climate-specialized experience for any period of time within the U.S. or state governments, three were appointed by President Donald Trump. Given the former administration’s own policies, it should come as no surprise that the majority of these appointees worked within presidential administrations with deregulation policies seen as highly sympathetic to industries such as fossil fuel. For example, Judge Lawrence VanDyke of the 9th U.S. Circuit Court of Appeals worked within Trump’s own Department of Justice (DOJ) Environmental and Natural Resources Division, while fellow 9th Circuit Judge Ryan D. Nelson worked within President George W. Bush’s Environmental and Natural Resources Division.

Trump’s third appointee, 9th Circuit Judge Bridget S. Bade, joined President George H.W. Bush’s DOJ in the Environmental Torts Litigation Section and later stayed at the DOJ for a few years during President Bill Clinton’s administration. In addition, two active appellate judges with similarly environmental-specific experience were appointed by President George W. Bush: 9th Circuit Judge Sandra Segal Ikuta worked for the California Resources Agency, while 8th Circuit Judge Lavenski R. Smith served on the Arkansas Public Service Commission. Finally, 2nd Circuit Judge Rosemary Pooler, a Clinton appointee, served on the New York Public Service Commission, and 4th Circuit Judge Stephanie Thacker—an appointee of President Barack Obama—worked in the West Virginia attorney general’s environmental division.

Private sector experience

This analysis finds the bulk of climate-related expertise on the bench has likely, then, been fostered within the private sector. As stated above, approximately 90 percent of current active appellate judges have work experience within that setting. The majority of that experience comes from work at law firms often known for their clients in the oil and gas, pharmaceutical, chemical, and other manufacturing fields—industries that have heavily contributed to environmental degradation (such as pollution) and climate change. In fact, environmental experts have explained that because of the dominance of these types of clients in private practice, conflicts of interests often arise that prevent law firm attorneys from providing pro-environment counsel, even in pro bono cases.

Underscoring this imbalance, several judges also worked in-house at major corporations with long histories of perpetuating environmental harms. Judge Joel M. Carson of the 10th U.S. Circuit Court of Appeals, for example, worked as general counsel to Mack Energy Corporation—a company that has long lobbied for fewer restrictions on the oil and gas industry, most recently speaking out against President Joe Biden’s climate policies. And Judge Raymond Kethledge of the 6th U.S. Circuit Court of Appeals worked for Ford Motor Company—a company that, according to recent investigations, knew of the link between car emissions and climate change beginning in the 1960s yet continued to resist efforts to lower emissions.

Other examples of judges working for companies with poor environmental track records include 7th Circuit Judge Amy J. St. Eve’s experience with Abbott Laboratories before joining the bench; that company has been involved in environmental disputes concerning hazardous air pollution and was recently listed by the University of Massachusetts Amherst as one of the top 100 toxic water polluters. And while it may be worth noting that Federal Circuit Court Judge Pauline Newman, a Reagan appointee, worked for a year as a science policy specialist for the United Nations, she did so while working within the chemical industry—specifically, for FMC Corporation, which has left a trail of hazardous Superfund sites.

Pointing out these individuals’ work experience should not be confused with condemning their professional backgrounds or implying that they were involved in any particular legal matters. Rather, it is important to note such experience to further understand the settings in which judges gained their climate-focused expertise.

Conclusion

Given the vital role the federal courts are set to play in efforts to strengthen the climate in the years ahead, it is critical that the bench include those with legal perspectives formed in the pursuit of environmental protection and justice. While judges can and should be objective in their work, their legal opinions will naturally be informed by the settings in which they gained their expertise in the law—expertise that, in regard to pro-environment work, is today nearly nonexistent.

Moving forward, policymakers must support nominees outside of industry and corporate settings to establish a more balanced judiciary.

Maggie Jo Buchanan is the director of Courts and Legal Policy at the Center for American Progress.

*Author’s note: All data, unless otherwise noted, are pulled from the Federal Judicial Center’s “Biographical Directory of Article III Federal Judges, 1789-present.”