Rumors have swirled as to who is on President Joe Biden’s shortlist of Supreme Court nominees to replace the outgoing Justice Stephen Breyer, who is retiring after serving for more than two decades. The president has made it clear he plans to fulfill a campaign promise to nominate a Black woman. Three names keep coming up when it comes to who that may be: Ketanji Brown Jackson, Leondra Kruger, and J. Michelle Childs. As The Washington Post noted, many environmental groups have yet to endorse a candidate or push a nominee they believe will best serve the country while keeping climate change at the forefront. One such advocate told the Post they believe it’s “the president’s prerogative,” though Evergreen Action Executive Director Jamal Raad stressed the importance of choosing a nominee committed to the fight against climate change.
Raad issued a statement on behalf of the climate change advocacy group earlier this month urging Biden to do the right thing. “As the court prepares to hear oral arguments in West Virginia vs. EPA next month, it’s never been more clear that we need justices who will preserve long-established environmental laws in the face of escalating attacks from polluters,” Raad said. “This nomination won’t undo the years of damage caused by Republicans politicizing the Court and blocking qualified Democratic nominees. That only increases the stakes for the nomination to fill Breyer’s seat. President Biden must nominate a champion for climate, clean energy, and environmental justice, who will uphold the nation’s bedrock climate laws.”
It’s difficult to find a true champion of the environment with the three potential picks listed. Kruger and Childs have limited records on the issue, while Jackson’s record is lengthy but does include a ruling issued in favor of the Trump administration that allowed it to move forward with building a border wall despite environmental laws, among other less-than-ideal decisions. In 2014, she issued an opinion against the Sierra Club, which sued the Army Corps of Engineers over the construction of the Flanagan South Pipeline, which has been operational since December 2014 and sends crude oil from Flanagan, Illinois, to Cushing, Oklahoma. Jackson found that the Sierra Club “was wrong to insist that any federal agency had an obligation ... to conduct an environmental review of the impact of the entire FS Pipeline before Enbridge broke ground on the project, given that the Federal Defendants have permitting authority over only small segments of this private pipeline project.”
At the same turn, Jackson has handed key victories to environmental groups and communities seeking environmental justice. In 2015, she ruled in favor of the Obama administration that groups like the National Cattleman’s Beef Association and the Federal Forest Resource Coalition failed to show how a 2012 Planning Rule in which forest conservation takes precedent could harm those industries. In one key section of the ruling, Jackson wrote that “even if one could surmise that the 2012 Planning Rule would imminently cause allegedly troublesome reductions in timber harvest and livestock grazing in relevant geographical areas, Plaintiffs have not shown that those reductions substantially increase the risk of wildfires such that, on the basis of this risk injury, Plaintiffs can be deemed to have an injury-in-fact giving rise to standing to sue.”
In 2018, Jackson ruled in favor of Guam over the U.S. territory’s decision to seek funding from the Navy to help with cleanup of a dangerous landfill containing munitions and chemicals. The Ordot Dump eventually contaminated the Lonfit River, a nearby body of water that flows into the Pago River, which makes its way to the Pacific Ocean. It was shuttered and an incredibly expensive cleanup process began. The federal government argued that Guam’s request for funding only applied to one section of the Comprehensive Environmental Response, Compensation and Liability Act, and that it had simply run out of time to do so. Jackson issued a ruling to the contrary, stating that Guam could seek money under two provisions that allowed the case to move forward. A 2021 Supreme Court ruling also sided with Guam, allowing the territory’s lawsuit against the Navy to move forward. The Ordot Dump is now considered a Superfund Site.
Kruger’s environmental record includes four unanimous decisions authored by the judge following her joining the California Supreme Court in 2015. In the 2016 case of Monterey Peninsula Water Management District v. Public Utilities Commission, Kruger found that the California Public Utilities Commission lacked the jurisdiction to review a fine imposed by the district that it charged customers for remediating the environmental harm it had caused the area. She also ruled on the 2016 case Friends of College of San Mateo Gardens v. San Mateo County Community College District that a project in which a community college building would be demolished and two others would be rehabilitated did not require an additional environmental impact report despite the scope of the project changing.
In an opinion for the 2017 case City of San Buenaventura v. United Water Conservation District, Kruger found that groundwater pumping charges were not related to a state proposition regarding property-related fees. This allows the district to continue charging customers for groundwater pumping, the funds of which it uses for conservation projects. Kruger also authored the 2020 opinion for Montrose Chemical Corp. v. Superior Court in which she wrote that “vertical exhaustion is appropriate” when it comes to the chemical company seeking insurance payouts for all the damage it’s done to the environment, which could allow for cleanup projects to be more easily funded. Finally, Kruger ruled in the 2020 case Wilde v. City of Dunsmuir that the framework allowing for municipal water rates and local utilities fees to be set are not subject to referendum.
Childs, who has served as a district judge on the United States District Court for the District of South Carolina since 2010, has just two environmental rulings to her name. In the 2017 case of South Carolina v. United States, Childs found that the federal government had violated the National Environmental Policy Act and thus needed to remove one metric ton of plutonium at the Savannah River Site, a Department of Energy reservation that had previously converted weapons-grade plutonium into fuel to be used in power reactors. Ultimately, the federal government will be responsible for removing 9.5 metric tons of plutonium by 2037 and will pay the state $600 million as part of a settlement reached in 2020. The other case, 2018’s South Carolina Electric and Gas Company v. Randall, found Childs siding in favor of the utility to deny the plaintiff’s request to dismiss the lawsuit. The suit concerned the state refusing to allow South Carolina Electric and Gas Company to recoup $5 billion in construction costs through ratepayers. It’s not necessarily a strong ruling that showcases Childs’ range of opinions in environmental issues but, as Legal Planet notes, Childs, Kruger, and Jackson are all a hell of a lot better than any justice Republicans could put forth to replace Breyer. Climate change is arguably the most pressing issue facing the world today and Biden must take that into consideration when choosing a SCOTUS nominee. Call on lawmakers to confirm a justice committed to combatting climate change.