With the addition of Justice Amy Coney Barrett to the U. S. Supreme Court, it doesn’t seem hyperbolic to predict that the Supreme Court will be the most anti-environmental court in the modern era.
Yet we need environmental protection now more than ever: intense hurricanes have bashed the Gulf and Atlantic Coasts all summer and fall, raging fires have set records throughout the West Coast, the Midwest has experienced catastrophic flooding and much of the country faces historic drought conditions. And that’s just in the U.S.
Though Barrett’s record on environmental issues is sparse, there are several reasons to believe she will join with her conservative colleagues to roll back environmental protection and to restrict environmental group access to the courts. First, she identifies herself as a follower of the late-Justice Antonin Scalia. Scalia routinely authored Supreme Court opinions and dissents to strike down environmental protections. He wrote the dissent in the court’s landmark decision Massachusetts v. EPA, which held that the Clean Air Act covers the regulation of the greenhouse gases that cause global warming.
Second, Barrett, like recent Supreme Court appointees Neil Gorsuch and Brett Kavanaugh, was on the Federalist Society’s shortlist for Supreme Court appointees. The Federalist Society makes no secret of its commitment to a limited role for the federal government and deregulation.
And third, Barrett herself sent strong signals at her confirmation hearings that she is a climate skeptic. In response to questions about climate change, she claimed not to know much about the issue, saying she “isn’t a scientist.” That phrase is routinely used by politicians who oppose regulating carbon pollution. Even more tellingly, she called climate science “politically controversial” in response to Sen. Kamala Harris’s (D-Calif.) questions. Scientists are unanimous in believing that greenhouse gases cause climate change. Regulating carbon pollution is controversial, not climate science.
With Barrett now confirmed, here are three ways the Supreme Court may limit environmental protection.
First, the conservative members of the court could overturn Massachusetts v. EPA. Were they to do so, the Environmental Protection Agency (EPA) would lose the most effective tool it has to cut greenhouse gas emissions from the electric power sector, from oil and gas drilling and from transportation. Even if the court preserves the holding of Mass v. EPA, it will almost certainly dramatically limit its reach by striking down ambitious EPA regulations issued under the Clean Air Act, upholding the case in name only.
Second, the court’s majority may limit the ability of states and environmental groups to bring environmental lawsuits. In order to file a lawsuit challenging environmental regulations and policies, a plaintiff must establish “standing.” In Massachusetts v. EPA, the dissenters, including Scalia, Justices Samuel Alito, Clarence Thomas and Chief Justice Roberts, would have denied Massachusetts the right to challenge EPA’s refusal to regulate carbon pollution. If the dissenting justices had prevailed, their reasoning would have made it impossible for states or environmental groups to challenge any environmental regulation that concerns climate change. All environmental suits would be more difficult to bring. With Gorsuch replacing Scalia and the addition of Kavanaugh and Barrett, citizen access to the courts will be imperiled.
Finally, in what would be by far its most radical move, the Supreme Court could revive a long-dormant doctrine — last used in the 1930s in opposition to the New Deal — to upend the power of federal agencies to do their jobs. Five of the current justices have signaled their interest in reviving what is known as the “non-delegation” doctrine. If Barrett joins them, six members of the court could begin striking down laws passed by Congress that give federal agencies like EPA, the Fish and Wildlife Service and the Occupational Health and Safety Administration (OSHA) the power and responsibility to implement federal law. Affected laws could include the Clean Air and Clean Water Acts, the Endangered Species Act, OSHA, the Affordable Care Act and many more. If the six conservative members of the court revive the non-delegation doctrine and use it expansively, the administrative state as we know it could come to an end.
It is not hyperbolic, as I stated earlier, to predict that the Roberts court, with new member Barrett, could be the most anti-environmental in history. Its anti-environmentalism couldn’t come at a worse time. We are facing the gravest existential environmental threat in human history as carbon pollution continues to accumulate in the atmosphere. We have little time — just a few decades at most — to cut that pollution to zero to avoid the worst ravages of climate change. And yet we have a court that could stand in the way of what is already the hardest environmental task we have ever undertaken. Barrett’s confirmation makes the possibility even greater.
Ann Carlson is the Shirley Shapiro professor of Environmental Law and the faculty co-director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law.