How Amy Coney Barrett may make it harder for environmentalists to win in court

Source: By Dino Grandoni, Washington Post • Posted: Monday, September 28, 2020

If President Trump’s Supreme Court nominee, Amy Coney Barrett, is confirmed it could make it harder to enact and enforce tougher environmental protections for years to come.

In accepting the nomination in a Rose Garden ceremony Saturday, Barrett praised Ruth Bader Ginsburg, the late justice whose seat she would be taking.

“Should I be confirmed,” Barrett said, “I will be mindful of who came before me.” 

But Barrett’s rulings on the U.S. Court of Appeals for the 7th Circuit seem to part with the liberal icon’s broad view of who can sue to enforce environmental statutes.

Democrats will focus on Barrett’s views on abortion and Obamacare. But Barrett’s impact on environmental law may be just as significant.

One of the biggest potential impacts of Barrett’s presence on the high court would be on who has standing to bring an environmental lawsuit.

While serving on the appellate court covering Illinois, Indiana and Wisconsin, Barrett wrote the majority opinion in two cases — including one brought by a park preservation group against the construction of Barack Obama’s presidential center in Chicago — denying opponents standing in court to sue. 

Her more restrictive view on who has standing is in line with that of the conservative icon Scalia.

Barrett was a clerk for Scalia in 1999 when the Supreme Court agreed to hear what would turn out to be a major ruling, written by Ginsburg, that opened the door for environmental groups to sue industrial polluters. 

Ginsburg’s decision in Friends of the Earth v. Laidlaw Environmental Servicesgreatly expanded the ability of citizens sickened by pollution to seek a remedy from the courts. Scalia was only one of two justices to dissent in the 2000 case.

“It was a huge defeat for Justice Scalia,” said Robert Percival, a professor of environmental law at the University of Maryland, adding: “I am convinced that Judge Barrett would take us back to the pre-Laidlaw days.”

There are signs Barrett could help cement the Trump administration’s environmental rollbacks for decades.

She signed on to a majority opinion in 2018 reversing a lower-court decision saying 13 acres of Illinois wetlands were subject to protection under Clean Water Act from being developed by a home builder.

At the center of that lawsuit was the Obama administration’s expansion of which bodies of water are regulated under the law. Claiming the rule has cost jobs, the Environmental Protection Agency under Trump has sharply limited federal protection for waterways.

Jamal Raad, campaign director for Evergreen Action suggested her presence on the court will make it more difficult for future administrations to tackle climate change, too. “We should all be clear,” he said in a statement. “Amy Coney Barrett’s nomination would give corporate fossil fuel interests a 6-3 majority on the Supreme Court to block climate action.”

The addition of a sixth Republican-nominated justice to the court would raise the bar for any challenges from environmental groups to that and other regulatory rollbacks from the Trump administration.

With Ginsburg’s death, the court’s three-member liberal bloc would need the support of at least one conservative to add a case to the Supreme Court’s docket.

At the same time, Barrett deeply cares about how the American public sees the Supreme Court.

As a professor at Notre Dame Law School, Barrett placed a “distinctive amount of weight on Americans’ perception of the Court’s legitimacy,” said Evan Bernick, executive director of the Georgetown Center for the Constitution who has studied Barrett’s legal scholarship.

It is that impulse to preserve the court’s legitimacy that has led Chief Justice John G. Roberts Jr. to sometimes side with liberals in environmental cases —including upholding the EPA’s ability to regulate greenhouse gases in 2014 even though he dissented in the initial 2007 case.

In a 2013 Texas Law Review article, Barrett did not argue erroneous precedents must be immediately overturned, noting judges do not “always have an agreed-upon standard for identifying ‘error.’”

But in the same article, she wrote “the public response to controversial cases like [Roe v. Wade] reflects public rejection of the proposition that stare decisis” — the principle that courts should be follow precedent —”can declare a permanent victor in a divisive constitutional struggle.”

One important precedent for the environment that the more conservative court may whittle away is Chevron deference.

That doctrine, established in 1984, requires courts to yield to agencies’ interpretations of the law when statutes are ambiguous. Some conservative judges — particularly Justice Neil Gorsuch — have sought to weaken that precedent, which was crucial for the Obama administration’s efforts to combat climate change using the Clean Air Act.

Barrett isn’t entirely opposed to deferring to federal agencies. In a dissent this year, Barrett deferred to the Trump administration after the Department of Homeland Security issued rules making it harder for immigrants who have relied on public assistance to get permanent residency.

Still, Bernick said his “expectation remains that she will join in Justice Gorsuch’s successful-thus-far project” in taking the bite out of Chevron.

At the White House over the weekend, Barrett said she shares Scalia’s views on the law. “His judicial philosophy is mine, too,” she said.

But Scalia, who joined the court in 1986, changed his own views on the doctrine during his three decades on the court, become less deferential to the executive branch over time.

“If she shares the views Justice Scalia held when she clerked for him, she will be a fierce defender of Chevron deference,” Lisa Heinzerling, a professor of environmental and administrative law at Georgetown, said of Barrett. “If she shares the views he held in his later years, she will be a skeptic of Chevron and a fierce defender of the Court’s power to undo or weaken acts of Congress.”

“The question for me is, which Justice Scalia will she be?” she said.

vere, intensify more quickly, and have the potential to stall for longer periods over particular areas, dumping rain and exacerbating flooding, Tristram Korten reports for The Post.

Scientists believe that climate change will cause more intense hurricanes, but there is not a widespread scientific consensus that it will cause them to increase in frequency.

Timothy Hall, a senior research scientist at NASA’s Goddard Institute for Space Studies, described the new study as “a bit of an outlier” on storm frequency. “However, there is pretty good consensus that there will be an increase in intensity,” he said.

The 2020 hurricane season has been abnormally active, shattering previous records and spawning so many storms that forecasters have run out of names and resorted to Greek letters.