Category Archives: Environmental Law and Policy

The Filibuster and the Environment

Guest Blogger: Dan Hellman, Middlebury College Class of 2014

If you have been awake for any part of the past few years (or longer), you may have noticed there is dysfunction in Washington. This dysfunction reached new bounds this past week as the senate changed its rules in what was deemed the “nuclear option” to prevent filibustering of lower-level presidential appointments. Now, we are clearly in an age where no amount of government dysfunction should surprise us (SEE: government shutdown), and the blame falls to both political parties for their repeated use of brinksmanship and stonewalling negotiations. The symbolic impacts of this change to the senate rules are an important story that has been covered by any number of biased news publications you may wish to read, but left out of much of the analysis is the policy impact. For environmentalists, the decision to circumvent senate filibusters represents a short-term victory.

Obstructionism and failure to compromise led to the "nuclear option" changing the senate rules

Obstructionism and failure to compromise led to the “nuclear option” changing the senate rules

The DC court of appeals plays an important role in the environmental policymaking process. There is a special provision in the Clean Air Act stipulating that challenges to rulemaking skip lower courts and go directly to the DC court for appeals. This makes it extremely important for people interested in new regulations against greenhouse gas emissions or crackdowns on coal-fired power plants. Any rule will inevitably be challenged as too strict by industry representatives, so filling the empty seats with liberal judges would give Obama a major advantage. This court has recently ruled against Obama on issues like their delaying a decision on issuing a permit for Yucca Mountain to become a nuclear waste repository.


As of now, the political makeup of the court is balanced. Democratic presidents appointed four judges and republicans appointed the other four, but this does not tell the entire story. When the caseload is full for the regular judges, the overflow goes to the senior (part-time) judges. Of the six senior judges, five are republicans.  There are three empty seats on the main court waiting to be filled. Obviously, this presents an important opportunity for the Democrats to gain control of an influential court.

1937 political cartoon when FDR was accused of court packing

1937 political cartoon when FDR was accused of court packing


Now, some people have said that by nominating justices to fill these seats, Obama is guilt of court packing.  I am looking at you Ted Cruz.  Though to be fair to the senator from Texas, I should mention that most of the republican establishment is saying the same thing.). They argue that the size of the court should be shrunk down to the current eight members. I am not often one to let facts come in the way of good political theatre, but this is not what court packing is. Just because they want the court to remain ideologically in their favor does not make his nominations invalid. When a Supreme Court justice retires, filling that vacancy is not court packing. It is simply fulfilling a constitutional requirement. If Obama were to expand the size of the Supreme Court to fifteen judges, that would be court packing. This is simply just filling open seats. As a quick aside, if court packing is increasing the number of judges so that the court becomes ideologically balanced in your favor, does that mean that withholding qualified nominations indefinitely to prevent the court from swinging ideologically towards the other side is court unpacking?

Political squabbles aside, the impact of this change to the senate rules is significant. This could eventually be seen as an important moment with regards to Obama’s climate legacy, as any rules he passes will inevitably pass through this court. Looking at the long term we should not expect this change to have any profound advantage to one party or another because each can benefit form the new format when they are in power. But for the moment, we can chalk this one up as a victory for environmentalists.