President Donald Trump is filling federal appeals court vacancies at a record rate, and those appointments could have a significant effect on the U.S. energy landscape. The judges could play a pivotal role in deciding challenges to permitting of new energy infrastructure and national monument designations that could open up more land for energy development.
But legal experts say discovering the true impacts of the new justices will take some time and court appointments from the prior administration will hold more sway in the near term. Moreover, Trump has only appointed one new judge to the U.S. Court of Appeals for the District of Columbia Circuit, which handles many of the cases involving challenges to federal energy regulations and policies.
Within months of Trump taking office, the U.S. Senate confirmed his nominee Neil Gorsuch to the U.S. Supreme Court. The president now has another opportunity to appoint someone to the high court after Justice Anthony Kennedy announced June 27 that he will retire from the Supreme Court at the end of July.
Trump has also appointed more federal appeals court judges to date than any previous U.S. president has at the same point in the term, the White House's director of legislative affairs Marc Short said in a recent interview.
As of June 27, the Senate had confirmed 21 of Trump's nominees to federal appeals courts. Trump also has been busy filling U.S. district court seats, with the Senate confirming 20 of his nominees to those courts.

The flurry of appointments could change the perspective of some courts, but the energy sector may have to wait a while to see just how that will pan out. "It's still pretty early to tell how President Trump's judicial appointments will affect energy policy," said Adam White, a research fellow at the Hoover Institution and director of the Center for the Study of the Administrative State at George Mason University's Antonin Scalia Law School.
White said President Barack Obama's judicial picks likely will have a bigger impact on judicial review in the near term. But some of Trump's appointees, including Gorsuch, "seem to be somewhat reform-minded when looking at administrative law as a whole" and could be "more skeptical of [agencies] and less deferential" to their interpretations of legal statutes, according to White.
For instance, while serving as a U.S. appeals court judge, Gorsuch criticized the Chevron deference, a legal doctrine that grants substantial leeway to agencies' interpretations of vague statutory language. Gorsuch said the precedent gave too much power to agencies at the expense of the courts and Congress.
Gorsuch's conservative predecessor on the high court, the late Justice Antonin Scalia, also had begun to question whether courts were deferring too frequently to agency interpretation of laws, including those that contemplate both criminal and administrative enforcement. In a concurring opinion to a March 2015 Supreme Court ruling, Scalia teamed up with Justice Clarence Thomas to insist that the courts, not agencies, are charged with resolving ambiguities in statutes and regulations.
Although the Supreme Court is the country's highest, the D.C. Circuit plays a key role in cases involving federal energy policies. That court reinforced its position in a recent ruling in which it stressed that only the D.C. Circuit and the Supreme Court could issue decisions on Clean Air Act regulations that have national implications, thereby limiting the reach of other federal courts on those matters to their respective circuits.
But Trump's impact on the pivotal D.C. Circuit has been limited so far. He has made only one appointment to that court: Gregory Katsas, who replaced conservative judge Janice Rogers Brown. The D.C. Circuit currently has 11 authorized judgeships, none of which are vacant.
That court could handle a number of big cases affecting the energy industry in the coming months and years. The Trump administration is considering sweeping action to avoid further retirements of coal-fired and nuclear power plants, a directive that would almost certainly face legal resistance if carried out.
White also recommended keeping an eye on a case pending before the D.C. Circuit against Trump's effort to undo national monument declarations in Utah, including for lands that contain coal reserves. The outcome of the case could set a precedent regarding a sitting president's power to revoke a past administration's declaration, White said. Currently, a president cannot revoke or modify a monument, only designate new ones.
Beyond the D.C. Circuit, Trump's court appointees likely will hear lawsuits regarding National Environmental Policy Act analyses of oil and gas pipeline projects, challenges that White said can be brought anywhere a pipeline would be located. And as oil and gas pipeline opponents seek a greater accounting of those projects' upstream and downstream environmental effects and the Federal Energy Regulatory Commission considers updating its pipeline certification process, it is "really going to be interesting to see how the courts grapple with those issues," White said.
Other federal appeals courts
Over half of Trump's federal appeals court appointments have been to just three circuits — the 5th, 6th and 7th — and those regions could handle significant energy-related litigation.
The U.S. Court of Appeals for the 5th Circuit encompasses oil- and natural gas-heavy Louisiana and Texas. The 6th Circuit spans Kentucky, Michigan, Ohio and Tennessee, all of which either produce or consume a substantial amount of coal. In 2015, Ohio and several other states, as well as coal producer Murray Energy Corp., filed challenges in the 6th Circuit to the Obama administration's Clean Water Rule, which defined waters subject to federal regulation. The Trump administration is working to rescind that rule, which the 6th Circuit stayed nationwide in October 2015. The 7th Circuit includes Illinois and Indiana, two other big coal-mining states.
Even with their appointments still in the early days, several of Trump's judicial picks have environmental groups on edge. Craig Auster, advocacy partnerships director for the League of Conservation Voters, said the group opposes some of the nominees based on their judicial records on environmental issues.
One of those nominees is Allison Eid, whom the Senate confirmed in 2017 to serve on the U.S. Court of Appeals for the 10th Circuit, which includes gas- and coal-producing states such as Colorado, Oklahoma, Utah and Wyoming. While serving on the Colorado Supreme Court, Eid backed state regulators' decision to deny a request for public hearing on a proposed drilling permit (Colorado Oil and Gas Conservation Commission v. Grand Valley Citizens Alliance).
In authoring the court's opinion, Eid said state law required the Colorado Oil and Gas Conservation Commission to hold hearings only on rules, regulations and orders within its jurisdiction, a list of actions she said excluded drilling permit applications. Grand Valley Citizens Alliance, which filed the complaint, had argued that the state's Oil and Gas Conservation Act required hearings on "any matter within the jurisdiction of the commission."
Eid's nomination drew praise from U.S. Sen. Cory Gardner, R-Colo., however, who said Eid would "follow the law regardless of the popular wind."
"Whether considering the plain meaning of a statute; discerning the proper role of the courts, the legislative branch, or the executive and its agencies; or evaluating the relationship between the federal government and the states, Justice Eid will side with what the law says," Gardner said in remarks at her September 2017 confirmation hearing.
The League of Conservation Voters also is concerned with the nomination of Andrew Oldham to the 5th Circuit. While working for the Texas attorney general's office,
Oldham joined other state petitioners in the case on a brief that said the Clean Air Act "cannot be interpreted to allow EPA to regulate greenhouse-gas emissions" under the law's Prevention of Significant Deterioration or Title V programs. In ruling on that case, the Supreme Court largely preserved the EPA's ability to require large greenhouse gas emitters to install greenhouse gas controls if they surpass key thresholds for other pollutants but shot down the agency's tailoring rule phasing in the associated permitting requirements.
