Kamala Harris makes Amy Coney Barrett’s climate views a campaign issue

Source: By Dino Grandoni, Washington Post • Posted: Thursday, October 15, 2020

Amy Coney Barrett, President Trump’s nominee for the high court, acknowledged during her confirmation hearing yesterday that the novel coronavirus is infectious and that smoking causes cancer. But during a grilling from Sen. Kamala Harris, a former prosecutor who is now Joe Biden’s running mate, Barrett refused to weigh in on whether the changing climate is a threat.

Calling the issue “very contentious,” Barrett said: “I will not express a view on a matter of public policy, especially when that is politically controversial.”

The probing from Harris (D-Calif.) was the culmination of a line of inquiries from the Senate Judiciary Committee on Barrett’s view on the changing climate and its causes.

The questions reveal just how important Democrats expect the Supreme Court to be in allowing future administrations to confront climate change.

A Democratic administration, if elected, may find itself defending laws and regulations meant to curb emissions in front of a court with a 6-3 conservative majority if Barrett is confirmed. The Democratic ticket is proposing a $2 trillion climate plan that may face legal challenges.

“I certainly do believe your views are relevant,” Harris said via videoconference.

Earlier in the hearing, Barrett told lawmakers during her last day of testimony that her views on climate change are not pertinent to the work she would do on the Supreme Court.

“I don’t think my views on global warming or climate change are relevant to the job I would do as a judge, nor do I feel like I have views that are informed enough, and I haven’t studied scientific data,” she told Sen. Richard Blumenthal (D-Conn.).

She added that she doesn’t think she is “competent to opine on what causes global warming or not,” echoing her testimony from Tuesday insisting she is “not a scientist” when asked about climate change, dusting off an old Republican talking point.

But legal experts suggested judges should have some scientific literacy.

“One would expect that intelligent people (and judges) would be aware of what is happening to our climate because it has become so obvious by now,” Robert Percival, a director of the environmental law program at the University of Maryland, wrote in an email. “I suspect her refusal to acknowledge climate change is out of fear that she might offend the person who nominated her or his supporters in the fossil fuel industry.”

Michael Gerrard, a professor of energy and environmental law at Columbia, said there is little to no controversy among courts about the scientific reality of global warming.

The notion that humans are responsible for rising temperatures is less controversial among the U.S. public than Barrett suggests. A strong majority of Americans — about 8 in 10 — say that humans are warming the planet, according to a Washington Post-Kaiser Family Foundation poll last year.

Among scientists dedicating their lives to studying the climate, there is virtually no doubt about the basic physics of Earth’s atmosphere: The buildup of carbon dioxide and other heat-trapping gases is making global temperatures go up.

“She has made political acceptance the test of scientific validity,” said Lisa Heinzerling, an environmental law professor at Georgetown. “Judge Barrett refused to say whether climate change is caused by humans but in so refusing she spoke loud and clear: Politics trumps science for her.”

When rendering judgments, Barrett said she would accept scientific findings from the Environmental Protection Agency when required to do so.

“If a case comes before me involving environmental regulation,” Barrett said during her exchange with Harris, “I certainly apply all applicable law, deferring when the law requires me to.”

In 2009, the EPA indeed determined that carbon dioxide and other greenhouse gases threatened public welfare by warming the planet.

But on Tuesday, she declined to offer her views on a crucial doctrine called Chevron deference — a principle giving the EPA and other agencies wide berth to interpret and implement ambiguous laws. Many conservative lawmakers and legal scholars, including the late Justice Antonin Scalia, took an antagonistic view toward the doctrine.

“The interpreter in our system should not be the agency that is enforcing the statute,” Sen. Mike Crapo (R-Idaho) told Barrett. “I think the courts should oversee this. Now, that’s just my opinion. So the the question that you probably can’t answer is, what is your opinion?”

“You’re right,” Barrett said. “I can’t answer.”

The Supreme Court will very soon be presiding over a climate case.

The high court is set to hear a case next year involving several oil companies, including Royal Dutch Shell, that are being sued by Baltimore. The city is seeking damages from sea-level rise and other impacts of global warming. Barrett’s father spent much of his career as a lawyer for Shell in Louisiana, a low-lying state losing acres a day to the sea.

The issue before the court is not the science of climate change, but a procedural matter that may determine where the case will be heard.

Still, the decision could have broad implications for a suite of other lawsuits from local governments from Hawaii to Rhode Island aiming to hold fossil fuel companies responsible for climate change. States and cities want the cases heard locally, while oil companies think they will find more favorable ground in the federal courts.

Barrett, a former clerk for Scalia, has like her mentor taken a narrow view of who can sue over environmental damages. During her three years as a judge on the U.S. Court of Appeals for the 7th Circuit, she wrote the majority opinion in at least two cases denying opponents standing in court.