Biden announces historic court pick at high-stakes time for climate, energy law

U.S. President Joe Biden on Feb. 25 nominated Ketanji Brown Jackson to the U.S. Supreme Court, the first Black woman to be tapped for the nation's highest court.

Jackson has been a judge for the U.S. Court of Appeals for the District of Columbia Circuit since June 2021 and before that was a U.S. district judge between 2013 and 2021. If confirmed, she would also be the first former federal public defender to become a Supreme Court justice.

"Judge Jackson is an exceptionally qualified nominee as well as a historic nominee, and the Senate should move forward with a fair and timely hearing and confirmation," the White House said in a statement.

Jackson's nomination comes as the Supreme Court is preparing to take up cases that could have profound impacts on the energy sector, including the government's ability to regulate greenhouse gas emissions from the power sector and protect U.S. waters.

With Jackson picked to fill the spot held by retiring justice Stephen Breyer who was nominated by former President Bill Clinton, a Democrat, her confirmation would not shift the Supreme Court's 6-3 conservative majority. But legal experts said Jackson's qualities as a judge are similar to Breyer, for whom Jackson had clerked on the high court, and could help her bridge ideological divides.

"I appreciate her impressive intellect, commitment to justice, and most especially her pragmatism and respect for the rule of law," Sara Colangelo, director of the Georgetown University Law Center's Environmental Law and Justice Clinic, said in an email. "Those latter characteristics ... may enable her to forge common ground with justices who have different philosophies."

What is at stake

The Supreme Court is taking up two cases soon that are pivotal to environmental regulation of the energy sector and the power of federal agencies.

On Feb. 28, the high court will hold oral arguments in West Virginia v. EPA (No. 20-1530), an appeal of the D.C. Circuit's decision to strike down the Trump administration's Affordable Clean Energy rule regulating power sector carbon dioxide emissions.

More broadly, the Supreme Court could review the U.S. Environmental Protection Agency's authority to regulate power plant emissions in a way that environmental groups worry would limit deference to federal agencies in crafting rules to implement vague statutes.

Later in 2022, the court will hear a case involving the proper test for determining whether wetlands are federally protected under the Clean Water Act.

"Those cases underscore the importance of confirming justices and judges, like Jackson, who respect precedent and recognize the government's role in addressing consequential societal issues, like protecting the environment and public health," Manish Bapna, president and CEO of the Natural Resources Defense Council, said in a Feb. 25 statement praising Jackson's nomination.

Given the timing of her nomination, Jackson would not participate in the EPA climate case but would be expected to hear the Clean Water Act case, Colangelo said.

"In both cases, not only are specific environmental and human health safeguards at stake, but the utility of our administrative state to address consequential issues seems very much at risk as well," Colangelo said.

In addition, the Supreme Court could weigh in next term on state law matters such as takings cases, common law claims or preemption issues that could "deeply affect environmental and human health interests," Colangelo said.

Case history

Biden previously nominated Jackson to serve on the D.C. Circuit, which handles many of the challenges against federal rules and regulatory actions.

In her less than a year on the D.C. Circuit, Jackson was part of a three-judge panel that temporarily stayed a Federal Energy Regulatory Commission order blocking a natural gas-fired plant from participating in ISO New England's capacity auction because the plant was under development and would not be operating in time.

The court's decision caused ISO-NE to calculate two different results for its most recent forward capacity auction: one that assumed the 650-MW Killingly Energy Center participated in the auction and another result that excluded the plant.

In its opinion, the majority of the three-judge panel said it granted the emergency relief because FERC "very likely fell short of its obligation under the Administrative Procedure Act to explain the reason for its decision," and not issuing a stay "would have irreparably harmed" plant developer NTE Energy.

In a dissent, D.C. Circuit Judge Robert Wilkins said FERC acted within its discretion and NTE Energy did not make a strong case for why the commission erred in its decision.

On Feb. 23, FERC affirmed its decision to approve ISO-NE's request to terminate the Killingly plant's capacity supply obligation.

Sanjay Narayan, managing attorney for the Sierra Club's Environmental Law Program, said that although the group typically does not favor construction of gas-fired power plants, Jackson's decision on the stay shows she is "attentive to need of parties to get a hearing in court ... something that I think most environmental groups favor."

As with the NRDC's Bapna, Narayan said Jackson "understands that the government has a duty and an obligation to protect the public and [is] somebody who's willing to give those affected by the government's decisions access to the courts to vindicate their rights."

Confirmation outlook

U.S. Senate Majority Leader Chuck Schumer, D-N.Y., said Jackson would receive a prompt hearing before the Senate Judiciary Committee and he will ask the Senate "to move immediately to confirm her" after the committee finishes its work.

Schumer expects Jackson to "again earn bipartisan support in the Senate" after being confirmed on a bipartisan basis three times before in other roles.

Senate Republican Leader Mitch McConnell raised concerns. McConnell voted against confirming Jackson to the D.C. Circuit and said Jackson "was the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the Court itself."

The Kentucky lawmaker also said Jackson had published just two opinions on the appeals court, both in the last few weeks, and that "one of her prior rulings was just reversed by a unanimous panel of her present colleagues on the D.C. Circuit."

Although the Senate Judiciary Committee is evenly divided between Democrats and Republicans, the controlling Democratic party can discharge Jackson's nomination to the Senate floor even if the committee has a tie vote. Democrats only need a simple majority to confirm a Supreme Court nominee, with Vice President Kamala Harris able to cast a tie-breaking vote.