Much of the debate over Amy Coney Barrett’s nomination to the Supreme Court has focused on hot-button issues like abortion, health care, and the integrity of the presidential election. But the decisive conservative majority her confirmation would cement will also have serious repercussions for the environment and public health, with polluting industries almost certain to get freer rein than they have enjoyed for decades, legal experts say.
The transformation of the court that the Trump administration and Senate Majority Leader Mitch McConnell have muscled through since 2017 is likely to hamstring the ability of future administrations to act on threats from tainted drinking water to climate change, say these experts. Together, the new majority’s rulings could undermine not only specific health and environmental rules, but the very basis of government’s power to regulate.
“It’s a tectonic shift,” said Patrick Parenteau, a professor at Vermont Law School. “Just about every environmental law we have could be rethought,” including decades-old protections such as the Clean Air Act, the Clean Water Act, and the Endangered Species Act. “This is shaking the foundations of what we do.”
The new court will likely impede efforts to undo President Trump’s aggressive regulatory rollbacks, and laws enacted by a future Congress or president will be vulnerable to reversal, Parenteau said. A solidly conservative Supreme Court also is expected to sharply limit the Environmental Protection Agency’s authority and make it harder for citizens to sue over pollution.
Justices are likely to frown on giving regulators too much leeway to regulate.
“There’s no question that this is going to be the most anti-environmental court in modern history,” said Ann Carlson, an environmental law professor at the UCLA School of Law.
The ideological shift comes at a pivotal moment, as scientists’ climate warnings grow increasingly dire, and devastating storms and wildfires have helped generate political momentum for action. The new court could thwart any such effort. At her confirmation hearings, Barrett wouldn’t say whether she accepted the overwhelming scientific consensus that human activity is driving rapid changes in the climate, calling it “a very contentious matter of public debate.”
She parried one climate question with the reply, “I’m certainly not a scientist,” the same language Republican politicians use to duck the issue. “I was stunned” by that echo, said Carlson, who took Barrett’s words as a strong sign she doubts climate science. “If you don’t even believe in the underlying science, it just makes me highly worried about how you’re going to approach legal questions about what I think is the greatest environmental challenge we’ve ever faced.”
That could signal trouble for the Supreme Court’s most important climate ruling, Massachusetts vs. EPA. The 2007 decision deemed greenhouse gases a pollutant covered under the Clean Air Act, meaning the Environmental Protection Agency (EPA) had a duty to regulate them. It also affirmed states’ rights to sue over federal climate failures.
The case, which became the legal basis for the Obama administration’s climate policies, could be undermined or overturned. Parenteau is already resigned to a revocation of the legal weapon the ruling gave states, and fears its main holding on greenhouse gases could go, too, perhaps on the grounds that the 1970 law made no mention of climate change — although Congress designed it to accommodate pollutants not understood at the time.
“That’s all we have right now in the United States for climate change — that’s our climate law, the Clean Air Act,” Parenteau said. Even if Massachusetts vs. EPA partially survives, the conservatives’ aversion to robust regulation means any greenhouse gas rules the court allows will be too feeble to matter, Parenteau predicted. And if Congress eventually enacts a strong climate bill, it will take years to learn whether it passes Supreme Court muster as an acceptable use of federal power. “Do we have years? No, we don’t,” he said.
Lawmakers will have to write new environmental bills with much greater specificity than was previously required, because justices are likely to frown on giving regulators too much leeway to hash out details, said Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law. He predicted a climate law, if carefully drafted, could survive court scrutiny.
While the Supreme Court has had a conservative majority since Brett Kavanaugh took the seat vacated by Justice Anthony Kennedy’s retirement in 2018, Barrett’s expected accession will strengthen the bloc’s hand. With an additional member, they will no longer depend on Chief Justice John Roberts, whose concerns about the court’s reputation have sometimes moderated his decisions. Although Roberts dissented from Massachusetts vs. EPA, he has since accepted its main holding as settled precedent, said Robert Percival, director of the environmental law program at the University of Maryland’s Francis King Carey School of Law.
Kavanaugh, the new swing vote, appears more ready “to embrace some of the hyper-conservative efforts” to undermine environmental protections, said Percival. While Trump’s regulatory rollbacks have suffered many court defeats, the new majority will likely “find that those were just fine.”
As with much in environmental policy, many of the questions likely to be in play sound technical but have wide-ranging consequences. Potentially the most far-reaching is whether the conservatives revive a doctrine known as non-delegation, which the Supreme Court has not used since justices wielded it to strike down parts of President Franklin Roosevelt’s New Deal, most notably the 1934 National Industrial Recovery Act. (Michigan’s Supreme Court employed it this month against Governor Gretchen Whitmer’s emergency Covid-19 actions, declaring unconstitutional the 1945 law she cited to authorize restrictions.).
The doctrine holds that Congress can’t hand legislative authority to governmental agencies. In its most extreme form, that could be taken to mean laws that give regulators too much discretion violate the separation of powers. Typically, Congress sets broad parameters, and agencies use their technical expertise to translate those guidelines into rules covering complex areas such as pharmaceuticals, food safety, and more. If such delegation is unconstitutional, Justice Elena Kagan wrote, “then most of Government is unconstitutional.”
The new majority will likely sharply limit lawsuits that challenge polluters or push regulators to act more aggressively.
Five justices have expressed interest in reviving non-delegation, and Barrett would likely join them, the experts said. They might apply the concept occasionally. Or “they could use this doctrine as an opportunity to strike down all kinds of Congressional statutes,” Carlson said. “That was what happened in the 1930s. It could be an almost existential threat to administrative agencies.”
Another key issue is “standing,” the question of how direct a harm someone must experience to sue. Justice Ruth Bader Ginsburg wrote a key ruling on that matter, Friends of the Earth v. Laidlaw Environmental Services, in 2000. It significantly expanded the right of environmental groups and citizens affected by pollution to file suit.
When the court agreed to hear the case, Barrett was clerking for her mentor, Justice Antonin Scalia, one of only two justices who ultimately dissented. His view of standing was far narrower, and the conservatives will likely now deliver on it, embedding tighter guidelines that sharply limit lawsuits that challenge polluters or push regulators to act more aggressively. Litigants on issues from water pollution to climate change could find it harder to get through courtroom doors. “I am very worried,” Gerrard said. “Throughout the 50-year history of environmental law, citizen enforcement has played a central role.”
Tighter standing requirements would curtail plaintiffs’ rights on other issues too, from voting rights to consumer protection. As an appeals court judge, Barrett took a strict approach. In August, she ruled a local group lacked standing to challenge the Obama Presidential Center’s encroachment on Chicago’s Jackson Park because its members had no direct interest in the use of park land. That, Barrett ruled, “pulls the rug out from under their arguments.”
With only three liberals remaining, it will be harder to get the four votes needed for the Supreme Court to take a case, adding another obstacle for environmental groups seeking to get on the docket.
Also looming are questions about a principle called “Chevron deference,” from a 1984 decision involving the company. It says courts should defer to agencies’ interpretation on ambiguous laws. Neil Gorsuch took aim at the idea when he was an appeals court judge, saying it had allowed “executive bureaucracies to swallow huge amounts” of power, and “maybe the time has come to face the behemoth.”
One expert says Barrett’s previous rulings show that “she is consistently pro-big business.”
That stance was a big part of why Trump chose him to fill the seat McConnell had held open for the last 11 months of Barack Obama’s presidency, then-White House Counsel Donald McGahn said in 2018. Trump’s regulatory rollbacks and judicial appointments, McGahn said, “are really the flip side of the same coin” — an effort to rein in regulatory power, which the counsel cast as “the greatest threat to the rule of law in our modern society.”
The new court will have many other opportunities to rule against environmentalists. Justices are due to hear oil companies’ appeal in a case in which Baltimore seeks to hold the industry liable for damage caused by climate change. Although only procedural questions are at issue, the ruling could effect a dozen similar city, county, and state suits. The court could use Juliana vs. United States, in which young plaintiffs argue that a failure to stem greenhouse gas emissions has violated their rights to life, liberty, and property, to tighten standing requirements. An aside in Barrett’s Obama library opinion noted that Ecuador’s constitution gives nature its own rights. Percival said that could hint she hopes to undo vast swaths of environmental rules because the U.S. Constitution lacks such a provision.
Environmental questions only arose in three of the 622 opinions Barrett signed while on the 7th U.S. Circuit Court of Appeals, said Adam Feldman, founder of the blog Empirical SCOTUS, who has reviewed them all. But her overall philosophy was clear, he said: “She’s consistently pro-big business, whether it’s corporate cases or liability cases or discrimination cases.” Her academic writings, ties to the powerful right-wing Federalist Society, and veneration of Scalia are further evidence of her staunchly conservative outlook.
More than undoing any specific rule, curtailing regulators’ ability to restrain corporate behavior is likely to be the new majority’s North Star. Trump’s appointments “are really about a philosophical approach to how much power agencies can have, how much access to the courts plaintiffs can have,” Carlson said. Fundamentally, Barrett’s selection is meant to advance that goal. “That is what Trump promised. That is what they are seeking in judicial nominees. And from everything I can see about her, she fits the bill.”