Advocates Push for Environment Lawyers in Biden Judicial Picks

President Joe Biden’s efforts to diversify the federal bench haven’t included someone with a career in environmental law, something progressives and environment advocates would like to see happen.

Absence of a nominee with that kind of deep background reflects what advocates say is a dearth of federal judges with environmental law experience, particularly for nonprofits or public interest groups.

“We would like to see some nominees for lifetime federal judgeships who have spent their full careers fighting for environmental justice, for our climate, for clean water, clean air, conservation, because we know that these are incredibly complex subjects,” said Doug Lindner, advocacy director for judiciary and democracy at the League of Conservation Voters.

Biden has prioritized judicial nominations that would bring both demographic and professional diversity to their respective courts, including public defenders and nominees with backgrounds in voting rights and civil rights.

Progressive and environmental advocates have praised the diverse experiences of Biden’s selections so far, including the nomination of Rachel Bloomekatz, a public interest lawyer with some environmental law experience. But they’d like to see more nominees with environmental backgrounds.

Rakim Brooks, president of the progressive Alliance for Justice, said lawyers are doing an “excellent job” of presenting public interest environmental cases before judges. “But that case would be made so much more strongly if we have people on the bench who really understood these areas of law well and can communicate that to their colleagues.”

Federal judges hear environmental cases about pollution that seek to weigh the economic benefits against health and environmental harms. Examples include the future of the Mountain Valley Pipeline for natural gas, a suit about what kind of waters deserve federal protection, and a complaint that a local government in Louisiana uses uses racist and outdated land use practices that place polluting industry in Black neighborhoods.

Environmental cases focused on climate change litigation also continue to grow, totaling more than 1,400 ongoing or concluded in the US, according to the Grantham Research Institute on Climate Change and the Environment.

Experience Lacking

An October 2021 article by Maggie Jo Buchanan for the liberal Center for American Progress found that no appellate judge spent time with a nonprofit that specializes in environmental work. The same review of Federal Judicial Center data found few appellate judges had experience working for the government in environmental law and none had experience working for the Environmental Protection Agency.

Progressive advocates and environmental groups said they can’t point to any federal judges—either district or appellate—who had significant experience in public interest environmental work, such as representing environmental justice groups in clean air or water issues.

Brooks said potential opposition from corporate interests those lawyers are sometimes at odds with in court could be keeping them from the bench.

“These are the best of the best lawyers. The idea that none of them are eligible for court in this country because a set of corporate interests are going to oppose them is bizarre,” Brooks said.

Lindner said the League of Conservation Voters is trying to ensure that environmental law is included in policymakers’ conversations about judicial nominations and helping lawyers with that experience get into the pipeline.

“Helping folks navigate that and making sure that they see themselves as potential candidates for judgeships is a really important piece of it,” he said.

The White House didn’t provide a comment on the prospects for such a nomination.

Demographic Diversity

Common career paths for nominees to the federal bench have traditionally included backgrounds in US attorney offices or at major law firms and not in areas like public defense or public interest.

Amy Steigerwalt, a professor of political science at Georgia State University who studies the judicial selection process, said one reason is that people selecting judges have tended to choose nominees with careers that look more like theirs. But that’s beginning to change.

“What I think a lot of people are starting to say is, wait a second, are we overlooking really valuable experiences that people have had and not treating them similarly to these other experiences?” Steigerwalt said.

Alliance for Justice and other progressive judicial advocates pushing for Biden to nominate more public interest and labor side attorneys applauded his nomination of Bloomekatz to the US Court of Appeals for the Sixth Circuit. She has some public interest environmental litigation experience.

At the time of her nomination, Bloomekatz was lead appellate counsel in a case over injuries the court said later was caused by E. I. du Pont de Nemours ground-water contamination in Ohio and West Virginia. She also represented environmental groups in a successful challenge to a Public Utility Commission of Ohio decision.

Some caution that selecting candidates who have represented one side of issues in areas such as environment isn’t the right way to foster a balanced bench.

“I don’t think it’s an appropriate approach to the institution of the judiciary,” said Clark Neily, the senior vice president for legal studies at the libertarian Cato Institute. “We should want a more equal distribution so that cases are decided on the merits, not according to some preconception like most environmental plaintiffs should win regardless of the merits of their case.”

Good Preparation

Judges don’t necessarily need environment backgrounds, said Sam Sankar, senior vice president of programs at Earthjustice. He noted what’s more important is that they understand the intricacies of environment cases.

“What we need is to make sure that we have judges who recognize and understand the complexities of environmental law and understand the importance of government in regulating the health and safety and protection of the environment,” Sankar said.

But Sankar is still hopeful about nominees with careers in public interest environmental law. “Not because we need to stack the bench with environmental lawyers, but it would be a powerful recognition of how important public interest environmental law is,” Sankar said.

Environmental law also could prepare prospective judges well for the issues that arise on the federal bench.

Environment law—like immigration and reproductive rights—deals with cross-cutting, complicated issues that involve administrative law, federal court jurisdiction, remedy, and procedure, said Andrew Mergen, a former appellate lawyer in the Department of Justice’s Environment & Natural Resources Division and current faculty director of Harvard Law School’s Emmett Environmental Law & Policy Clinic.

“You’re really missing something when you don’t have folks who are really steeped in those sort of doctrines,” Mergen said. “And one of the best places to learn those doctrines, hands down, is in the environmental space.”