Environmental action, laws may face new hurdles on high court

The nomination of Amy Coney Barrett to replace Ruth Bader Ginsburg could lock in a Supreme Court majority skeptical of government intervention.

Demonstrators gathered in New York to support government intervention in climate change in 2019.  (Erik McGregor/LightRocket via Getty Images)
Demonstrators gathered in New York to support government intervention in climate change in 2019. (Erik McGregor/LightRocket via Getty Images)
Posted September 29, 2020 at 6:00am

Corrected, Oct. 6 | A conservative supermajority on the Supreme Court could deal a crippling blow to environmental laws on the books, water down climate regulations tied up in court and make it harder to curb greenhouse gas emissions in the U.S., according to environmental law scholars and advocates.

A 6-3 conservative majority may also dissuade an administration under the leadership of Joe Biden, the Democratic candidate for president, from pursuing aggressive climate rules, experts said.

President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg, who was a reliable supporter of stringent environmental oversight, Seventh Circuit Judge Amy Coney Barrett, does not have a deep judicial record on any topic, including environmental issues. The Senate confirmed her to the circuit court 55-43 in October 2017.

Barrett clerked for former conservative justice Antonin Scalia and holds a narrow view on who has legal standing to file federal lawsuits than more liberal colleagues.

Two majority opinions Barrett wrote on the Seventh Circuit, which covers Illinois, Indiana and Wisconsin, hint at her views on water law and legal standing. In June 2018, she signed an opinion that reversed an earlier ruling that found 13 acres of wetlands in Illinois fell under Clean Water Act protections. And in August she held, writing the majority opinion, that a citizen group challenging the location of the planned Obama Presidential Center in Chicago did not have legal standing.
Experts pointed to a landmark case in 2000 that established a broad view of environmental groups’ ability to sue.

Writing that year for a 7-2 majority, Ginsburg argued that it took fines -- not just the possibility of fines -- to discourage polluters from breaking the law.

“A would-be polluter may or may not be dissuaded by the existence of a remedy on the books, but a defendant once hit in its pocketbook will surely think twice before polluting again,” Ginsburg wrote for a majority in the case Friends of the Earth v. Laidlaw, which centered on a South Carolina waste company that operated without proper water permits.

“When she wrote for a 7-2 majority in 2000, we had a very different court,” Ryke Longest, a Duke University law professor, said of that ruling, adding that justices Clarence Thomas and Antonin Scalia dissented. Two decades later, the views of the two-person minority could become the majority stance.

Legal experts said the Supreme Court ruling that gave EPA the authority to regulate carbon emissions is also at risk under a court with Barrett.

When the court ruled 5-4 in 2007 on Massachusetts v. EPA, widely considered the most important climate lawsuit in American history, it found carbon dioxide, the most common greenhouse gas, is an air pollutant the agency has authority to regulate. The ruling laid the groundwork for a series of climate regulations during the Obama administration.

The only "yes" vote remaining from that case is Justice Stephen Breyer. Experts say a conservative court could gut it or overturn it entirely.

“There's a threat to Massachusetts versus EPA, and that existed when Ginsburg was on the court,” Karen Sokol, a law professor at Loyola University in New Orleans, said by phone. “If she is replaced by another conservative member, there's a good chance it could get overturned.”

Agency tools

Under the Obama administration, the EPA and other federal agencies used environmental laws already on the books, like the Clean Air Act, as the legal foundations for regulations to lower power plant and automobile emissions, set national air-quality standards and protect wetlands.

Many of those efforts are now tied up in court, as the Trump administration works to weaken Obama-era rules. A 6-3 conservative court could effectively seal off that route for future administrations.

Legal experts said the Chevron Doctrine, the result of a 1984 Supreme Court ruling in which courts defer to agencies over ambiguous statutes, will likely come under further attack in a court where the center of power has shifted.

Kavanaugh, for example, has been critical of the Clean Air Act, calling it a “thin statute” in a 2016 case about the Clean Power Plan, an Obama-era rule to curb power-sector emissions.

“Even if he's willing to defer to some of what some agencies do, it's not going to be the EPA, it's not going to be climate, it's not going to be anything like that,” Sokol said of Kavanaugh, adding that the likely swing vote on environmental cases can be expected to be hostile to agencies tasked with protecting the environment, such as the EPA.

Rob Verchick, an environmental law professor who teaches in New Orleans at Loyola and Tulane universities, said Kavanaugh hews toward deference with agencies that deal with economic or financial matters. “But when it comes to agencies that are in charge of promoting government safeguards, whether it's in the workplace, or whether it's in the environment, or the air and water and communities, he tends to be very distrustful,” Verchick said in an interview.

“There’s a battle on the court right now about how much deference, how much trust one should put in an agency,” he said. “And I think Gorsuch and some others are kind of wondering whether or not the court should grant any kind of deference to agencies regardless of their expertise.”

Trump has been open about nominating judges who fit the conservative legal mold of Scalia, who was generally dismissive of climate science.

­­­­­Anticipating challenges

“If there's a Biden administration, you have to know that you know that a lot of any regulations that come out are going to be challenged,” Jason Rylander, senior counsel at Defenders of Wildlife, said by phone. “Would they attempt something as sweeping as the Clean Power Plan, knowing that they’ve got a 6-to-3 court? I don’t know,” Rylander said. “It has a lot of ripple effects,” he said of a court without Ginsburg.

Rylander, Verchick and Longest predicted it could become more difficult for citizens to get to their cases heard in court.

Rylander said he is mulling if the Supreme Court “will make any decisions that curtail environmental group access to courts” or adopt steps that “ratchet up” the requirements to have legal standing in a lawsuit.

The justices are scheduled to hear oral arguments in two environmental cases this fall: Texas v. New Mexico, a case about water evaporation that dates to the 1960s is scheduled for Oct. 5, and on Nov. 2, a Freedom of Information Act lawsuit between the Sierra Club and the U.S. Fish and Wildlife Service over endangered species.

While environmental causes were not Ginsburg’s judicial lodestar, her passing, at the tail end of the first term of an administration that has sought systematically to weaken environmental regulations, came at a critical point. The Intergovernmental Panel on Climate Change, a leading international group of climate scientists, warned in a landmark 2018 report that humans have until 2030 to get global emissions under control and thwart temperatures from rising more than 1.5 degrees Celsius beyond pre-industrial levels, the threshold past which scientists say climate change gets significantly worse.

That gives the U.S., responsible for one-quarter of all historical greenhouse gas emissions, little time to ramp down its carbon footprint.

“It’s impossible to overstate the significance of this moment in time,” said Pat Parenteau, an environmental law professor at Vermont Law School. The loss of Ginsburg is a massive blow to environmental protection, he said. Parenteau said the U.S. court system, “even with RBG,” was sealed off as a venue of tackling climate change at the scale and speed that science demands.

Still, he added, environmental lawyers can’t give in and should tailor their cases to lock down a Supreme Court majority, whatever the composition.

“You always have to try to figure out how you can craft whatever policy you’re working on with an eye to ‘Do I have five votes? How am I going to get five votes?’” he said.

Sambhav Sankar, an Earthjustice attorney, said he worries the court is losing its political independence when humanity faces an existential threat in climate change and as judges throughout the court system view climate science in a partisan lens.

“We are seeing across the judiciary, a willingness to poke around in the science that is sometimes really right, sometimes really wrong. But it's really driven in a partisan way right now,” Sankar said in an interview.

After learning of Ginsburg’s death, Sankar, who clerked for Justice Sandra Day O’Connor, said he thought about his view that the Supreme Court’s independent image is slipping in the public eye.

“When I walked around that building, I felt like every person there had a vision of an institution that was a positive force in people's lives,” Sankar said. “That they had their sense of themselves being not political, that it was a real institution, and that it had real legitimacy.”

"I felt like, for a teeny little flash of time, that I'd be part of one of the great institutions in this country," he said. "I'm not sure if I was a clerk walking in today I’d feel the same way."

This report was revised to correctly identify the school where Pat Parenteau is anᅠenvironmental law professor.
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