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October 14, 2020
SCOTUS environmental issues, part 2: What's next after Ruth Bader Ginsburg's death?
By Lisa Whitley Coleman

Politicians are gearing up for another brawl in the capitol over the Republican push to quickly appoint a replacement for late Justice Ruth Bader Ginsburg’s Supreme Court seat.

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What will it mean for the climate change cases and other legal matters involving the environment expected to be considered by the high court this fall and in upcoming sessions?

President Donald Trump announced Judge Amy Coney Barrett as his nominee to follow in Ginsburg’s footsteps on September 26. If appointed, Barret will be Trump’s third SCOTUS nomination and would make history as the youngest woman appointed.

Background on the nominee—Barrett

Barret grew up in Metairie, Louisiana, a suburb of New Orleans. She graduated with a liberal arts degree, magna cum laude, from Rhodes College in 1994 and received a full scholarship to Notre Dame law school, where she was the executive editor of the law review and graduated summa cum laude in 1997.

After law school, she held two clerkships, the first for Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit from 1997–1998. Next, she worked for the late Justice Antonin Scalia, the justice she considers her mentor, in SCOTUS until 1999.

After 2 years in private practice, she returned to academia as a law and economics fellow at George Washington University before heading back to Notre Dame in 2002. In October 2017, she was appointed to the U.S. Court of Appeals for the 7th Circuit. Less than a year later, Trump first considered her for SCOTUS to fill retiring Justice Anthony Kennedy’s seat.

Could timing and the warring political climate derail her nomination?

Senate majority leader Mitch McConnell and other Republican leaders have said they will vet, hold hearings for, and confirm Barrett before election day, even though these procedures generally take 70 days to complete, according to businessinsider.com.

In response to the push for a quick confirmation process, the Democrats are calling out the Republicans on their reversal of position from 2016 when the GOP said that SCOTUS nominees should not be considered in an election year.

What to expect from Barrett if confirmed?

Barrett has a long and distinguished legal pedigree. Some have said she’s been groomed for SCOTUS, following in Scalia’s footsteps.

Her environmental record is scarce. Before her appointment to the 7th District Court, she said she only remembers a handful of cases on which she worked and had no prior experience in appeal arguments as a private practice attorney.

The Washington Post reported that one of the qualities Trump desires in a SCOTUS justice is that the candidate have an impressive record of academic writing, and Barrett certainly meets this qualification. In fact, her academic portfolio provides much insight into her thought and decision-making processes.

“In her time as a law professor at Notre Dame, Judge Amy Coney Barrett wrote extensively and provocatively on the concept of precedent—concluding that it is ‘not a hard-and-fast rule’ that courts stand by what they have previously decided,” according to insideclimatenews.org.

This summer, Barret penned a ruling in the 7th Circuit blocking Chicago residents and a park preservation group from stopping construction on the Obama Presidential Center in the city's Jackson Park. “The challengers’ lack of standing ‘pulls the rug out from under their arguments,’ Barrett wrote,” according to eenews.net.

In 2018, she signed a decision that asked the Army Corps of Engineers to reconsider its decision to place 13 wetland acres in Illinois off limits from housing development.

“Her slim judicial record shows that she’s hostile to the environment and will slam shut the courthouse doors to public interest advocates, to the delight of corporate polluters,” Brett Hartl, government affairs director at the Center for Biological Diversity, said in a statement, according to eenews.net.

Her writings on administrative law certainly indicate she will favor deregulation on issues such as greenhouse gas emissions.

“In a 2018 analysis for the Yale Journal on Regulation, Georgetown University visiting law professor Evan Bernick found that Barrett appeared to take a ‘rule-like’ approach to interpreting statutes like the Clean Air Act,” stated eenews.net.

“Conservative textualists like Judge Barrett want to view statutes as unambiguous, which constrains the flexibility of agencies and leaves little room for innovation,” said Justin Pidot, co-director of the University of Arizona’s environmental law program, as reported in eenews.net. “This could spell real trouble for efforts to address the most pressing environmental issues we face, like climate change and environmental justice concerns.”

Textualism is an ideology promoted by Scalia, Barrett’s mentor. Its theory is that laws should be interpreted based upon the plain text of the law.

Massachusetts v. the U.S. Environmental Protection Agency

Climate change advocates and environmental law scholars believe Barrett’s appointment means there will be little remaining support for one of the court’s significant environmental decisions: Massachusetts v. the EPA.

Decided in 2007, this case established that all greenhouse gas emissions are pollutants under the Clean Air Act. In addition, it affirmed the states’ rights to challenge the federal government in its failure to act on climate change. At the time, four justices strongly opposed the finding, with Ginsburg voting with the majority.

Barrett would be Trump’s third conservative appointment, cementing a solid conservative ideology on the bench. According to axios.com, only Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer remain on the liberal end of the spectrum.

This is good news for industry in an era of deregulation but not so much for the environment, according to activists.

There is currently a number of lawsuits filed by states making their way up the ladder through the district courts and heading for SCOTUS, where only three members remain of the original five-justice majority who endorsed the idea that any state could seek legal redress “for the harm caused to its citizens by federal inaction on climate,” according to insideclimatenews.org.

“Throughout the Trump administration, the states have taken the lead in much of the litigation challenging the regulatory rollbacks,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, according to insideclimatenews.org. “States can represent the diverse interests of many citizens like no other plaintiffs in the U.S. system. The prospect that a reshaped Supreme Court would deny or narrow states' standing to sue is ‘very worrisome,’ said Gerrard, adding that such a ruling would be difficult for Congress to undo.”

SCOTUS rules require four of the justices to agree to hear a case in a court that accepts less than 1% of cases filed for its consideration. With a narrower view of states’ rights, environmentalists and others fear there will not be future climate change relief from SCOTUS.

“I would expect that it will be tougher for EPA to act as aggressively with an Amy Coney Barrett on the Supreme Court than it was with a Ruth Bader Ginsburg,” said Tom Lorenzen, head of the environment and natural resources practice at Crowell & Moring LLP, according to eenews.net.

SCOTUS’s climate change history

Further digging into SCOTUS’s writings regarding Massachusetts. v. EPA reveals “the court’s finding on carbon dioxide is based on its interpretation of a statute—a law written by Congress—the 1970 Clean Air Act,” notes Richard Lazarus, a professor at Harvard Law School and author of a new book on the case, according to insideclimatenews.org. “The Court almost never overrules cases based on statutory construction, because the assumption is that Congress can fix it,” Lazarus said.

In 2006, during oral arguments on the Massachusetts case, Kennedy, the swing vote on the case, referred to a SCOTUS precedent ruling in 1907 in which the Court found that Georgia could address pollution from copper mining within its borders.

“… it became a linchpin of the decision, carefully crafted by its author, Justice John Paul Stevens, to hold onto Kennedy's vote and a five-justice majority, as Lazarus recounts in his book, The Rule of Five: Making Climate Change History at the Supreme Court,” according to insideclimatenews.org.

At the time, Chief Justice John Roberts wrote a strong dissent in which he stated that Congress and the executive branch should deal with climate change matters rather than the courts.

His opinion further stated, “The realities make it pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land.”

According to Gerrard, there is not one single policy that can fix climate change issues, and under reasonings such as those expressed by Roberts, it’s unlikely that any state challenges to federal climate policy will prevail. “Emissions standards on motor vehicles may be the single biggest thing the government can do on climate change,” said Gerrard, according to insideclimatenews.org. “If that's too small—then everything else is even smaller.”

The legal concept at issue here is standing, the ability of a party to demonstrate a connection to the matter and direct harm resulting from the law or action. Roberts, along with Justices Neil Gorsuch, Brett Kavanaugh, and Scalia, has a very narrow definition of standing—one that Barrett seems to endorse.

“In a lengthy dissent in June, she indicated her view on standing is in line with that articulated by Roberts,” according to insideclimatenews.org. “She argued that a challenge to Trump's immigration policy should not have been allowed to go forward because, under the Constitution, it did not belong in the courts. ‘Litigation is not the vehicle for resolving policy disputes,’ she wrote.”

What’s ahead?

To date, 115 multistate lawsuits have been filed to block or cancel actions by the Trump administration to deregulate greenhouse gas emissions, repeal the Clean Power Plan (CPP), and weaken fuel economy standards, according to data compiled by Marquette University political scientist Paul Nolette. His calculations reveal states have been victorious in their legal proceedings in 80% of decisions to date. More than 30% of these cases are still pending and headed to SCOTUS.

On October 8, 2020, the U.S. Court of Appeals for the D.C. Circuit began hearing arguments in American Lung Association v. EPA, a case the Trump administration hopes will repeal the Obama administration’s CPP.

“At stake is whether the Trump administration can lock in an extremely narrow interpretation of the Clean Air Act by persuading judges that the federal government does not have the authority to set national restrictions on carbon emissions or force states to move away from coal-fired power,” according to The New York Times.

With the heated presidential election coming up, a win by Biden could change everything, as his administration would likely delay all state litigation against Trump policies in a repeal of actions the Trump administration took in 2017 in pending environmental cases regarding Obama’s environmental policies.

Environmental law scholars believe there is another element that could sway SCOTUS to hear and decide some of these environmental legal matters. “The effects of climate change are much more in evidence around us than they were when Massachusetts v. EPA case was heard 13 years ago,” said Ann Carlson, co-director of the Emmett Institute on Climate Change and the Environment at UCLA Law School, according to insideclimatenews.org. “When you read that case, the Massachusetts coastline getting inundated seems a bit far off. Today, you have hurricanes, wildfires and heat waves like we've never seen before.

“I do think when we're getting slammed like this, it's going to be harder for the court to say, ‘No one action will solve the climate problem,’ as its reasoning for rejecting a case on climate change,” said Carlson.

Originalist

With many in industry deciding to lead the charge to innovate in addressing climate change head on (see “Major CEOs in favor of carbon price tag”), it is important for justices and politicians to be aware of the public good and adapt to changing times that our forefathers could not have predicted when they wrote our constitution.

Peers have described Barrett as an originalist, meaning she interprets the Constitution according to the understanding and intent of its original authors.

“Justice Kennedy showed a willingness to interpolate things into the Constitution that, in cases like Obergefell, that Justice Scalia for example would not have done,” said John Garvey, president of the Catholic University of America, who taught Barrett in law school, according to The New York Times. “My guess is that Judge Barrett wouldn’t assume that the judicial role carried that much power with it.”

If Trump is successful in his power play to fast-track Barrett’s appointment, he could influence legal decisions far beyond his term.

“Ginsburg maintained one of the most consistent liberal voting records in the history of the court. Barrett has the same consistency and commitment,” said Jonathan Turley, a professor of law at George Washington University, according to the BBC News. “She is not a work-in-progress like some nominees. She is the ultimate ‘deliverable’ for conservative votes.”

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