A focal point of the tumultuous US election has been Senate Republicans’ persistence in forcing through Judge Amy Coney Barrett’s confirmation to the Supreme Court following the passing of Justice Ruth Bader Ginsburg. With a Republican majority in the full Senate and Senate Judiciary Committee, Barrett was sworn in last week, giving conservatives a 6-3 super-majority in the highest court of the land. The confirmation of Amy Coney Barrett as the Supreme Court’s ninth justice could fundamentally reshape the US for decades to come, not only because she is predicted to repeal the Affordable Care Act and overturn Roe v Wade if and when given the chance, but also because of her views on climate change. We will take a look at what Barrett’s confirmation could mean for environmental law.
Is Climate Change Real? Barrett Refuses to Respond
With more than 1 million acres of the West Coast engulfed in flames and the East Coast sheltering from a relentless barrage of hurricanes, 6 in 10 Americans see climate change as a major threat and 7 in 10 believe that global warming is happening. Amy Coney Barrett, unlike the majority of Americans, refused to acknowledge the very existence of climate change when asked directly to do so by Senator Kamala Harris at her confirmation hearing, instead choosing to describe its existence as a “very contentious matter of public debate.” Her evasive response to basic questions about the climate crisis- with excuses that she isn’t a scientist and that she does not have firm views on the crisis- was at odds with her willingness to state other obvious scientific facts, including that smoking causes cancer and that coronavirus is infectious, suggesting that Barrett has an interest in associating herself with a climate denialist perspective.
Besides being backed by Trump, who has called climate change “mythical,” “nonexistent” and an “expensive hoax,” Barrett’s father was a lawyer for Shell when it was covering up the true extent of the climate crisis, which may shed light on her vested interests when it comes to the environment. Compared to Ginsburg, who repeatedly affirmed not only the existence and severity of the climate crisis, but also the US Environmental Protection Agency’s authority to regulate greenhouse gases in landmark court cases Massachusetts v EPA and American Electric Power v Connecticut, it is clear that Barrett’s appointment is likely to be a major setback for environmental protections.
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Barrett’s Treatment of Climate Change in Past Cases
Barrett is no stranger to being a judge: She was a Trump nominee to the Federal Appeals Court in 2017. Although her past judicial record on environmental cases is slim, we have already seen several red flags that may foreshadow her approach towards climate change now that she has been confirmed.
Barrett has taken a narrow view of public interests groups’ power to sue on environmental issues, which could disqualify environmental groups with legitimate claims from accessing courts. In a case this May brought by Protect Our Parks (POP), a park preservation group, to stop the construction of the Obama Presidential Center in Chicago’s Jackson Park, Judge Barrett found that POP did not have standing, partly because they could not “repackage in injury to the park as an injury to themselves.” Conversely, Ginsburg in Friends of the Earth v Laidlaw Environmental Services established a broad view of standing, holding that citizens and groups with a “reasonable concern” that their use of natural resources was harmed by the violation of environmental laws had standing to sue.
Additionally, Barrett’s past writings have challenged stare decisis– a legal principle whereby courts adhere to principles established in earlier cases. While the implication of her attitudes on stare decisis has been widely scrutinised with regards to the right of abortion, this may also open the possibility of her overruling key environmental cases like Massachusetts v EPA and American Electric Power v Connecticut, thereby stripping the power of the EPA to regulate carbon pollution and leaving a crucial aspect of environmental regulation to the whims and budgets of individual states.
Finally, Barrett is predicted to follow other conservative judges like Neil Gorsuch in rejecting the Chevron deference, which liberal justices have used to defer to environmental agencies’ application of science to interpret laws and justify their actions. If this occurs, the dominant legal approach among Supreme Court judges may be to substitute their own policy preferences for expertise-based, scientific environmental regulation and to parse the climate science themselves. This is likely to cause problems considering Barrett’s denial of the existence of the climate crisis thus far.
Trump’s presidency has rolled back countless environmental protections, but the courts were a critical bulwark to preventing 83% of the administration’s attempted rollbacks. Barrett’s appointment is especially important, because if Trump is reelected, courts are expected to rule on issues like carbon emissions from power plants and water pollution in streams, wetlands and groundwater. With Barrett’s confirmation looming, a right-leaning Supreme Court could make it significantly easier for Trump or a future president to remove climate regulation and significantly more difficult to pass new and much-needed climate regulation. Of course, given that Supreme Court justices have defied expectations in the past, it is premature to say with certainty how Judge Amy Coney Barrett would vote on climate change issues, especially as the effects of global warming are becoming impossible to ignore. While we have some indication of how she might vote when it comes to the environment, only time will tell.
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