Federal court dockets in 2023 will be loaded with cases that could decide the fate of U.S. water, air and climate policy.
Environmental attorneys have been busy crafting their arguments in legal battles on issues like the federal government’s duty to examine the environmental impacts of oil leasing and the fossil fuel industry’s obligation to pay for fires, storms and other effects of a warming planet.
Some of those cases have already arrived at — or could soon make their way to — the Supreme Court.
The Biden administration is also preparing to address disproportionate pollution in Black communities, roll out a raft of robust climate rules and defend its retooling of the nation’s clean water safeguards. Conservative attorneys say they are ready to sue over each of those efforts.
Here are 10 lawyers to watch in the legal battles and policy debates of 2023 that will shape the future of federal environmental protections.
Jeff Landry, the Republican serving as the top lawyer for the Bayou State, has led some of the biggest multistate lawsuits against the Biden administration’s environmental policies and rules.
The Louisiana attorney general’s office could eventually launch a Supreme Court battle over the Biden team’s use of a formula that helps federal agencies justify the cost of climate rules. A win for Louisiana and other states would be detrimental to the White House’s climate agenda (Energywire, Dec. 8, 2022).
Landry has also played a key role in fighting the administration’s efforts to scale back oil and gas development on public lands and waters. His office is currently leading a legal push to move ahead with a massive offshore lease sale in the Gulf of Mexico after Congress reinstated the sale through the Inflation Reduction Act.
A former member of Congress and an Army veteran, Landry became Louisiana’s attorney general in 2016.
Earlier in his career, Landry started an oil and gas environmental service company and became executive director of his local economic development authority. He has said his experience navigating federal regulation in that position inspired him to get his law degree at Loyola University New Orleans.
Among the lawyers opposing efforts to proceed with offshore leasing is Kristen Monsell, litigation director of the Center for Biological Diversity’s oceans program.
Monsell’s group is party to the case in the U.S. Court of Appeals for the District of Columbia Circuit that says the Biden administration must still take a hard look at the climate impacts of Lease Sale 257, as required under the National Environmental Policy Act. Monsell and her colleagues have raised similar arguments related to the Inflation Reduction Act’s reinstatement of Lease Sale 258 in Alaska’s Cook Inlet (Energywire, Nov. 30, 2022). The cases will determine the administration’s NEPA obligations in the face of landmark legislation requiring the lease sale to move forward.
The D.C. Circuit’s ruling in the case will determine the administration’s NEPA obligations in the face of landmark legislation requiring the lease sale to move forward.
Before joining the center, Monsell was assistant attorney general of the Oregon Department of Justice’s Natural Resources Section and a lawyer for the Humane Society of the United States.
She is a graduate of Lewis & Clark Law School and St. Lawrence University.
One of the nation’s newest Republican state attorneys general — Brenna Bird of Iowa — has pledged to take down Biden-era environmental regulations, including EPA and the Army Corps of Engineers’ expanded definition of waters of the United States, or WOTUS.
Bird won the seat from moderate Democrat Tom Miller, who had declined to challenge more robust WOTUS rules under President Joe Biden and former President Barack Obama — despite opposition to the regulations from other Iowa officials and agricultural groups (Greenwire, Nov. 18, 2015).
During the campaign, Miller criticized Bird for focusing more on taking down the Biden administration than serving the needs of Iowans.
In addition to WOTUS, Bird has said she plans to sue over the Biden administration’s implementation of the Endangered Species Act and rules for herbicide use (Greenwire, Oct. 27, 2022).
Bird is a former prosecutor and private practice attorney. She has worked in the Iowa governor’s office and the U.S. House, and she has taught at the University of Iowa College of Law. She is a graduate of Drake University and the University of Chicago Law School.
The new attorney general for the Navajo Nation will have a big role to play in an upcoming Supreme Court battle over dwindling water supplies from the shrinking Colorado River.
Ethel Branch recently reprised her role as the Navajo Nation’s top lawyer, replacing Doreen McPaul, who served from 2019 to 2023. Branch previously held the attorney general position from 2015 to 2019.
Branch’s office is enmeshed in a legal fight against the Biden administration, which will soon make its case to the Supreme Court, arguing that the federal government has no legal duty to assess the Navajo Nation’s water needs for water from the Colorado River — a resource that is crucial to the tribe’s survival and spiritual practices (Greenwire, Oct. 25, 2022).
The Supreme Court is expected to hear arguments in the case in 2023.
Branch most recently co-founded and served as executive director of the Navajo & Hopi Families Covid-19 Relief Fund and was recognized by Bill Gates as one of the “7 unsung heroes of the pandemic.”
During her last stint as attorney general for the Navajo Nation, Branch was involved in legal and public relations work related to the Gold King mine spill and former President Donald Trump’s efforts to shrink the Bears Ears National Monument. She has also worked at a private law firm and in tribal finance.
Branch is a graduate of Harvard College and Harvard Law School.
The outcome of a Supreme Court Clean Water Act case argued by Pacific Legal Foundation attorney Damien Schiff is expected to shape conservatives’ legal arguments against the Biden administration’s new WOTUS rule.
During October oral arguments in Sackett v. EPA, Schiff urged the justices to endorse a much narrower definition of WOTUS than the courts currently apply when determining which wetlands and waterways are subject to federal permitting requirements.
If the Supreme Court favors Schiff’s argument, the decision could spell trouble for the Biden administration, which just issued a much more expansive WOTUS definition. The EPA and Army Corps of Engineers rule is expected to face multiple lawsuits in courts across the country (Greenwire, Jan. 3).
The Supreme Court is expected to issue its Sackett ruling by summer.
Schiff is a graduate of Georgetown University and the University of San Diego School of Law.
As head of the Justice Department’s newly minted Office of Environmental Justice, Cynthia Ferguson will lead the administration’s efforts to address pollution in Black communities in 2023 and beyond.
The office, housed in DOJ’s Environment and Natural Resources Division (ENRD), is designed to coordinate with the department’s current offices to ensure that its environmental litigation and enforcement efforts are reaching communities of color and low-income communities that are disproportionately affected by contamination and climate change.
Ferguson was officially appointed to her position in November and has been in the role in an acting capacity since May (Greenwire, Nov. 16, 2022).
Before that, she was senior litigation counsel for environmental justice at ENRD. She began her career in 2000 in the division’s Environmental Enforcement Section.
Ferguson is a graduate of Carnegie Mellon University and the Illinois Institute of Technology’s Chicago-Kent College of Law.
One of the lawyers behind a slew of oil industry Supreme Court climate petitions has made his mark in high-profile litigation related to same-sex marriage and free speech.
Theodore Boutrous, a legal commentator and partner at the firm Gibson Dunn & Crutcher LLP, is on the docket in several pending pleas from Big Oil for the Supreme Court to reverse procedural victories for local governments suing Chevron Corp. and other companies to pay up for their contributions to climate change (Climatewire, Dec. 6, 2022).
If the Supreme Court takes up the climate liability challenges, it would be the second time the justices have weighed in on the jurisdictional dispute. Oil companies have attempted to move the cases to federal courts, where the lawsuits may be more likely to fail, but industry’s efforts have so far been thwarted by lower courts.
The Supreme Court, which does not take up every case that comes its way, is expected to decide in the coming months whether it will hear the climate liability fight again.
Boutrous is no stranger to bringing hot-button issues to the nation’s highest bench. In 2013, he was part of the legal team that successfully argued for the Supreme Court to reject California’s ban on same-sex marriage.
He also prevailed in litigation brought by CNN and reporter Jim Acosta against the Trump administration to restore the journalist’s press credentials after Acosta clashed with the former president.
Boutrous holds a bachelor’s degree from Arizona State University and a law degree from the University of San Diego.
A forthcoming brief from the office of Solicitor General Elizabeth Prelogar will influence how — or if — the potential Supreme Court climate liability fight proceeds.
In October, the justices asked Prelogar to weigh in on the battle — before the court decides whether the case will be among the small number of petitions that get added to the docket. Traditionally, the views of the solicitor general have carried special weight in the justices’ consideration of which cases to grant.
Unlike the Trump administration before it, Biden’s team is expected to throw its support behind the state and local government challengers — but the administration has yet to take that stance officially, despite the president’s campaign promise to “strategically support” the litigation (Climatewire, Oct. 12, 2022).
Prelogar and her team will also handle other high-profile cases this year that could pack a punch for environmental regulation — including an upcoming Supreme Court showdown over Biden’s plan to forgive up to $20,000 in federal student loan debt for eligible borrowers (Greenwire, Dec. 5, 2022).
Prelogar has served as solicitor general since October 2021. Before joining the Biden administration, Prelogar was assistant to the solicitor general from 2014 to 2019. She has worked in private practice and was part of special counsel Robert Mueller’s investigation of the Trump campaign’s dealings with Russia.
Prelogar attended Emory University, the University of St. Andrews and Harvard Law School. She studied in St. Petersburg, Russia, as a Fulbright fellow.
Expect to see more influential legal writing in 2023 from Lindsay See, one of the 2022 winners of the National Association of Attorneys General’s Best Brief Award.
The group recognized the West Virginia solicitor general for the arguments her team laid out in 2022 in the West Virginia v. EPA Supreme Court climate case, which struck down the Obama administration’s EPA power plant emissions rule — even though the regulation had never officially taken effect (Climatewire, Nov. 11, 2022).
In 2023, See is expected to defend the Mountain Valley natural gas pipeline, which has faced multiple legal hurdles, cost increases and construction delays. The project, which would carry gas south from West Virginia, became the focus of congressional permitting reform efforts in late 2022 led by Sen. Joe Manchin, a moderate West Virginia Democrat.
See’s office is also expected to help state Attorney General Patrick Morrisey (R) map out the next phase of litigation against Biden-era rules using the strategy that led to their victory in West Virginia v. EPA (Climatewire, July 1, 2022).
After graduating from Harvard Law School in 2011, See clerked for a D.C. Circuit judge and worked at Gibson Dunn. She has served as West Virginia’s solicitor general since 2018.
Ketanji Brown Jackson
The Supreme Court’s newest member has established herself as an active questioner but has yet to write her first opinion in a case argued before the justices this term.
Justice Ketanji Brown Jackson’s first merits opinion will be scrutinized for indications as to how she will approach her lifetime role on the nation’s highest bench. Jackson has already drawn on her experience as a public defender in her first written opinion — a November dissent to the Supreme Court’s denial of a death penalty case.
While the Supreme Court often issues merits decisions as early as November, the justices have yet to add an opinion release date for the current term, which has so far been loaded with high-profile, controversial cases, including the Sackett Clean Water Act fight.
During Sackett, the first Supreme Court oral argument over which she presided, Jackson was the third most talkative justice, and her points were cited five times by four of her colleagues — both conservative and liberal, according to an analysis by Empirical SCOTUS.
Before replacing Justice Stephen Breyer on the Supreme Court, Jackson served as a federal judge in Washington, D.C., where she built a record as a moderate jurist (Greenwire, Feb. 25, 2022).
Jackson, a Harvard College and Harvard Law School graduate, previously served on the U.S. Sentencing Commission and worked as an assistant federal public defender and as a private practice attorney.
Reporters Lesley Clark and Niina H. Farah contributed.
Correction: An earlier version of this story mischaracterized Kristen Monsell’s role as co-counsel in litigation over Lease Sale 257. Her group is a client in the case.