Judge who blocked abortion pills eyes Biden climate agenda

By Lesley Clark | 04/19/2023 06:53 AM EDT

“There’s no doubt that a lawless judge like Kacsmaryk can cause a lot of chaos,” said one legal observer of the Texas judge who could soon halt a high-profile Biden administration climate rule.

Matthew Kacsmaryk listens during his confirmation hearing before the Senate Judiciary Committee in 2017.

Matthew Kacsmaryk listens during his confirmation hearing before the Senate Judiciary Committee on Capitol Hill in 2017. Senate Judiciary Committee via AP

The federal judge in Texas who earlier this month suspended use of a common abortion pill could eventually play a big role in stopping the Biden administration’s more unconventional efforts to tackle climate change.

Due to a quirk in federal procedure, Judge Matthew Kacsmaryk hears 95 percent of civil cases filed at the U.S. District Court for the Northern District of Texas in Amarillo, giving conservative challengers a nearly direct pathway to a Trump-appointed jurist who may sympathize with claims against President Joe Biden’s efforts to promote vaccines, bolster LGBTQ rights and curb planet-warming emissions.

“There’s no doubt that a lawless judge like Kacsmaryk can cause a lot of chaos,” said Dan Farber, co-director of the Center for Law, Energy & the Environment at the University of California, Berkeley.


Kacsmaryk’s April 7 injunction on the abortion pill, mifepristone, was temporarily lifted by the Supreme Court on Friday while the justices take a closer look at the matter. But Kacsmaryk’s ruling, Farber said, relied in part on arguments from anti-abortion groups and suggested an “unwillingness to follow the law in deferring to agencies on scientific matters” — a crucial element of climate litigation.

Most federal climate policies are grounded in the Clean Air Act, a statute that requires litigation to land in the U.S. Court of Appeals for the District of Columbia Circuit.

But Texas and other conservative challengers are eyeing Kacsmaryk’s bench as their on-ramp for legal action against the Biden administration’s more unusual emissions policies, such as a Labor Department rule that makes it easier for retirement plan sponsors to account for climate risks. Kacsmaryk, like other federal district judges, has the power to issue broad injunctions against climate rules that extend well beyond the jurisdiction of his court.

An adverse ruling would then be reviewed by the conservative-dominated 5th U.S. Circuit Court of Appeals and the Supreme Court (Greenwire, Feb. 15).

“They’re absolutely more likely to get an initial order, and more importantly a temporary restraining order, than they would from any other district judge in Texas,” said Victor Flatt, faculty director of the Environment, Energy and Natural Resources Center at the University of Houston Law Center, of conservative challengers seeking relief in Kacsmaryk’s court.

While the practice of seeking out favorable courts crosses party lines, Stephen Vladeck, a professor at the University of Texas School of Law, said Biden’s Republican critics have engaged in “transparent manipulation” by seeking out individual judges whom they believe will be more sympathetic to their cases.

Under Trump, he noted, Democratic attorneys general sought out friendly courthouses — without a guarantee that one single judge would hear the case. Not so for dozens of cases that have been filed in Kacsmaryk’s court.

“The problem is the appearance it creates when litigants can hand-pick the judges to hear specific challenges to specific policies,” Vladeck wrote recently in his newsletter One First.

“Put another way,” he continued, “judge shopping is a problem even if the judges to whom these cases are being steered are acting consistently with judicial and ethical norms, entirely because it undermines public perception in the neutrality and impartiality of the judiciary even if the judges are doing their level best.”

ESG battle

In the challenge to the Labor Department’s rule allowing fiduciaries to consider environmental, social and governance (ESG) factors when choosing retirement plans, Kacsmaryk has already blocked an effort to move the litigation to federal court in Washington.

He has yet to reach a decision on 25 red states’ request to stop the rule from taking effect while the litigation proceeds (Climatewire, Feb. 23).

“Do I expect him to rule for the state of Texas? It’s certainly plausible, and it’s certainly the belief of the state of Texas,” said Flatt, who is serving as a visiting professor at the Coleman P. Burke Center for Environmental Law at Case Western Reserve University School of Law. “They’re going to keep going to that well.”

That Kacsmaryk has the ESG case has alarmed supporters of the rule, including a number of Democratic state treasurers and comptrollers.

“It’s very disturbing that Judge Kacsmaryk has chosen to ignore basic legal principles of deference to government and fact finding through reviewing scientific research,” Maryland Comptroller Brooke Lierman said of the abortion ruling. “If he brings that same lack of coherent jurisprudence to the Department of Labor case, then he will be putting at risk the retirement savings of millions of Americans.”

Lierman argued that successful investors need to “gather all available information about what can impact investments and looking at environmental and governance risks is certainly important to consider.”

In rejecting the Labor Department’s efforts to move the ESG case to Washington, Kacsmaryk wrote last month that the federal government fell “well short” of proving that transferring the litigation would be “in the interest of justice.”

Kacsmaryk noted that the department accused its challengers of “judge-shopping” and said that the federal government argued that the practice undermines public confidence in the judicial system and “rewards gamesmanship.”

But Kacsmaryk rejected the charge of “judge shopping,” writing that two of the challengers — who were added to the case after the department filed the request to transfer the case — live in Texas.

The judge wrote that the government had failed to “explain how simply filing cases in a district where venue is proper and then prosecuting the case can be considered ‘manipulation of the assignment process.’“

He also criticized the idea that the case would be better heard in Washington, noting the cost of living in Amarillo as compared to the nation’s capital. He cited a case that said “in Amarillo, 72-ounce steak dinners are free” — an apparent reference to a local restaurant that provides a free meal to patrons who can eat a 4.5-pound steak dinner in an hour.

Texas Attorney General Ken Paxton (R), who filed the lawsuit in January, celebrated the ruling, accusing the Biden administration of trying to “judge shop” by requesting the case be moved to Washington.

He vowed to “pursue justice relentlessly for the State of Texas against Joe Biden’s onslaught of illegal federal policy.”

ESG: A ‘major question’?

Kacsmaryk’s abortion ruling is part of a broader controversy over federal trial court judges’ power to put a nationwide freeze on regulations and policies.

Broad court orders, or nationwide injunctions, have taken down regulations on the environment and other key issues from both Republican and Democratic administrations — and have received criticism from both ends of the political spectrum.

Part of the problem, said David Driesen, a law professor at Syracuse University, is that the Supreme Court has signaled to judges “that they can treat regulations as the subject of emergency orders.”

He said: “You’re supposed to show some kind of emergency, something very, very important is about to happen — not just a bunch of rules that you don’t like.”

Based on Kacsmaryk’s abortion pill ruling, Driesen said it’s possible the judge could unwind Biden’s ESG rule by citing the “major questions” doctrine that the Supreme Court used in June 2022 to restrict EPA from regulating power plant emissions. The legal theory requires that agencies have explicit congressional authorization to act on significant issues.

In the abortion ruling, Kacsmaryk said the Food and Drug Administration’s 2000 approval of mifepristone violated a federal rule that allows for accelerated approval for certain drugs.

“There’s a danger there” for raising the major questions doctrine, Driesen said. “Instead of looking at whether it’s legal under the law, he’ll say it’s novel to be using ESG criteria, and therefore it’s a major question and that Congress should resolve it.”