Update: 10/14/2020: During the last day of hearings for Supreme Court nominee Amy Coney Barrett refused to say if she accepts the science of climate change. Under questioning from Senator Kamala Harris, Barrett said she would not comment “on a very contentious matter of public debate, and I will not do that.” Read more here.
Our guest in a recent episode of our podcast, Trump on Earth, Michael Gerrard, professor of energy and environmental law at Columbia, weighed in:
Judge Barrett may not have firm views on this, but every court in the world that has addressed the issue has agreed with the scientific consensus on climate change. Views differ on role of the courts, but not on the reality of problem. We track the cases: https://t.co/epDWGJw3mP https://t.co/dp7WyTq958
— Michael Gerrard (@MichaelGerrard) October 14, 2020
It appears that President Trump has enough votes in the Senate to confirm Supreme Court nominee Amy Coney Barrett before Election Day. That means the court’s balance would tip from a 5 to 4 advantage for conservatives to 6 to 3. What would this majority mean for the environment?
(The interviews were conducted before Amy Coney Barrett was nominated to fill Justice Ruth Bader Ginsburg’s seat on the Supreme Court.)
Listen to the full episode or read the transcript below:
(This conversation has been edited for clarity.)
Reid Frazier: We already have a 5 to 4 conservative majority on the court. What are the big ways that a 6 to 3 majority would impact the environment?
Ellen Gilmer: It could affect a lot of things. And I think the main way we would see an impact on environmental law is actually through administrative law cases. Those are cases that deal with regulations in general, whether they have to do with the environment or not. The more that this kind of regulatory law changes, the more impact it has on environmental issues.
So if we see a court that is pretty skeptical of various agencies’ power to do regulations, to do certain types of regulations, then we’re going to see that have ripple effects on environmental rules.
Reid Frazier: Does this mean if somebody sues the EPA for not following through on a regulation or the Clean Air Act or something like that, is that what we’re talking about?
Ellen Gilmer: Totally. A great example would be if the EPA, under a future Democratic administration, crafted some new climate regulations under the Clean Air Act. The Supreme Court, depending on who’s on the bench, a more conservative court would probably be more skeptical about the EPA’s power to use the Clean Air Act to address climate issues. They might say, ‘hey, we think the Clean Air Act is more about conventional air pollutants. This is a step too far beyond what Congress intended.’ That’s the kind of dynamic that we expect to see on a more conservative court. We don’t have a crystal ball, so we don’t know exactly how these kind of cases would go. But that’s something that environmental litigants would be worried about.
How Trump’s Rollbacks Will Fare
Reid Frazier: One theme we’ve been tracking for the last four years or so is, Obama created several big environmental regulations, many of them crafted towards climate. The most famous case is probably the Clean Power Plan. Trump has rolled those back. Those cases are now all in court. Are these cases that a future conservative majority would have more of a likelihood of going with the rollbacks?
Ellen Gilmer: It’s definitely possible. Something that we’ve seen on the court previously in the past couple of years is Chief Justice Roberts acting as a swing vote sometimes. That came up in a couple of really interesting cases involving the federal government’s rationale for its actions.
There were a couple cases that listeners might remember dealing with the census citizen citizenship question last year. Then this year, there was the DACA immigration case. In both of those cases, Chief Justice Roberts wrote the majority opinion and was really that kind of critical vote, siding with the traditionally liberal bloc of the court in saying neither these actions fly because the agencies involved didn’t give a reasoned explanation for what they were doing.
That’s exactly the kind of standard that’s going to come up in future deregulatory cases if cases about water jurisdiction or power plant regulations or methane regulations reach the Supreme Court.
Will a 6-3 Court Be Hostile to Climate Change?
Reid Frazier: The Clean Power Plan was a historic step forward for climate activists in terms of regulating carbon emissions. But if you kind of look at what scientists are saying about climate change, it’s not a permanent solution to climate change. If anything, it’s a first step.
What if in a Biden presidency or some future Democratic presidency, there is a version of a carbon tax or Green New Deal carbon legislation? Is it a possibility that a 6 to 3 Supreme Court could simply block or stymie any efforts to really deal with climate change?
Ellen Gilmer: It’s definitely a possibility. It depends on how creative a future Democratic administration is in crafting a new regulation and under what power. If they’re crafting a new regulation under the Clean Air Act, they’re going to have great lawyers working on it. They’re going to find a great way to justify what they’re doing.
“If you had five justices on the court who are willing to revisit that, then you could see Massachusetts v. EPA being struck down or being narrowed in some way.”
But there are also going to be great lawyers on the other side saying this is beyond what the Clean Air Act is intended for. That’s, again, that argument that we think a more conservative Supreme Court might be pretty receptive to.
The more ambitious the action, that might mean the more creative you have to get to do it. The more creative you have to get to do it, the more vulnerable something is in court.
The other kind of question mark, though, is whether Congress takes action and changes anything. Congress obviously has tons of power to give federal agencies more authority to do X, Y and Z to address climate change. That would really be the thing that that would give an agency the most legal cover to take more creative climate action.
Reid Frazier: One big decision that this is bringing up for me is something called Massachusetts v. EPA, which correct me if I’m wrong, Ellen, in which the court decided that climate-changing emissions qualified under the Clean Air Act as something that the EPA had to deal with. Is it possible that we could see the Supreme Court essentially go back on that decision?
Ellen Gilmer: Massachusetts v. EPA said if EPA determines that carbon dioxide or other greenhouse gases are pollutants, then it’s required to take action under the Clean Air Act. We could see that revisited.
“So if that case ends up going to the Supreme Court, that could give the Supreme Court a foothold to look at this climate issue more broadly.”
The EPA, under the Obama administration, had the Clean Power Plan to cut emissions from the power sector. The Trump administration replaced the Clean Power Plan with the Affordable Clean Energy Rule, arguing in part that they were bound under the Clean Air Act to only address a very narrow set of emissions issues from power plants and not to look at the whole power sector. So if that case ends up going to the Supreme Court, that could give the Supreme Court a foothold to look at this climate issue more broadly.
There are other cases that could push that question up to the Supreme Court. First of all, the Supreme Court would have to decide it wanted to hear the case. It doesn’t always grant every case that it gets a petition on. In fact, it denies most of them.
But if it took an interest in that issue and you had five justices on the court who are willing to revisit that, then you could see Massachusetts v. EPA being struck down or being narrowed in some way. That, again, would turn the spotlight back on Congress in terms of climate action, because then it would be up to Congress to draft some new legislation and make sure that some agency had the authority to do this.
How Friendly to the Environment Would a RBG Replacement Be?
Reid Frazier: We don’t know who the nominee will be going forward (as of 9/24/2020). The name of Amy Coney Barrett, who’s a conservative judge, has been mentioned a lot. As a legal reporter, how will you interrogate their record? What will you look for to see what kind of justice they would be?
Ellen Gilmer: The first thing that I look at when I’m looking at any judicial nominee is obviously their environmental record if they have one. The names that are being tossed around right now, they don’t have a big record in environmental issues.
So the next thing you look at is administrative law. That’s all the regulatory issues that we talked about. We see if they have a big record on regulatory issues, did they tend to be skeptical of agency power? Do they tend to want to defer to an agency’s interpretation of the law? Or do they think that agencies don’t deserve deference on their interpretations of law? That’s a big question to look at.
I also look at what their views are on precedent. Lower court judges aren’t going around overturning precedent, because they don’t have power to do that. So you look at scholarly writings to try to get a sense of how they feel about precedent and whether, if they were appointed to the Supreme Court, they would have a lot of qualms about overturning precedent.
Chief Justice Roberts is very uncomfortable with overturning precedent, and he likes change to happen very, very slowly. But not every conservative judge feels that way. We’ll look at the new nominees to see if they have writings or any opinions that suggest how they feel in that regard.
Ellen Gilmer is senior legal reporter for Bloomberg Law. The Trump on Earth podcast is produced by Andy Kubis. The Allegheny Front is participating in Covering Climate Now, a global journalism collaboration strengthening coverage of the climate story.