Conservatives, conservation, and the court: it won’t work

DARIA FARMAN-FARMAIAN: With the confirmation of Amy Coney Barrett to the Supreme Court on October 26, environmental legislation is in trouble. When questioned about her position on climate change during her Senate hearing, Barrett said the topic was too controversial and she did not have firm views on the issue. 

By describing it as controversial, she dangerously frames climate change as a matter of politics rather than science. By stating her neutrality, Barrett downplays her ties to the fossil fuel industry because of her father’s long-time career as a lawyer for Shell Oil and as chairman of the nation’s leading fossil fuel lobby, the Subcommittee on Exploration and Production Law of the American Petroleum Institute.   

As a Justice, Barrett has promised to keep an open mind on all issues. However, her politicization of and history with climate change works against her wish to be seen as an impartial judge. In this way, she becomes complicit in the crisis. When she disputes that her “views on global warming or climate change are relevant to the job [she] would do as a judge,” she skirts her responsibility as Justice to acknowledge facts of climate change to properly rule on questions regarding the powers of federal agencies and environmental protection.

Historically, the Supreme Court has been a powerful actor in environmental decisions. In the 2007 Massachusetts v. Environmental Protection Agency case, Massachusetts and other states petitioned the EPA under the Clean Air Act to regulate greenhouse gases that have contributed to global warming from car emissions. In the end, the Supreme Court voted in favor of Massachusetts in a 5-4 majority, which laid the groundwork for many of President Obama’s climate policies and the Paris Agreement.

As climate change lawsuits escalate and as President-elect Biden fulfills his promise to push for more climate legislation, the Supreme Court will continue to have a significant role in deciding future environmental cases. This makes Barrett’s stance on the environment especially consequential. When she avoids addressing even the basic science of climate change and her role as a Justice in this issue, Barrett cannot effectively rule on critical issues surrounding climate such as liability, regulation, mitigation, equity, finance and accountability. 

Some argue that Barrett’s personal opinions about climate change will not affect her approach to the law considering most climate cases focus on how to address the issue, not whether it is an issue at all. Even so, with a 6-3 conservative majority, it is likely that policy to protect our planet from climate change will be struck down. 

The conservative Supreme Court can challenge environmental protections by restricting the influence of agencies like the EPA in limiting greenhouse gas emissions, regulating presidential and Congressional power, and narrowly interpreting the law. This can take the form of blocking executive action as it did with Obama when he supported the EPA’s Clean Power Plan. 

The Court can limit individuals or groups’ ability to sue the government to take action on climate change. This would be consequential as litigation brought by states and environmental groups has historically been vitalin keeping the federal government accountable for its stance on climate. 

It can also negate environmental policy because of the tendency of conservative justices to support the nondelegation doctrine. Under this doctrine, laws can be struck down if they give too much power to executive agencies like the EPA. Court involvement can be mitigated in this case; however, if Congress and the President pass detailed legislation with little room for interpretation from federal agencies like the EPA to decide on policy.

The first Supreme Court decision regarding climate change is already scheduled for next year and will give us a view of how it will rule on future decisions. In the case, Baltimore is suing Big Oil over damages from climate change. This case will have significant implications over whether local governments can make fossil fuel companies liable for global warming. If the Supreme Court rules in favor of oil companies, it will be harder for cities and states in the future to prevail on climate cases.

The decision of the Supreme Court to review this case is already a big win for oil companies who are being sued for millions in damages caused by climate change. These companies have frequently attempted to bring climate cases against them to the federal judiciary level, where they have been more likely to win than in state courts. Next year, the Supreme Court will decide the role of the appeals courts in determining on what level, state or judiciary, these cases will be heard.

Though the Court is not considering questions about the science of global warming, this case is a narrow issue with large implications. Barrett’s addition to the Court will therefore only make it harder for democratic states and environmental groups to win climate cases if they are tried on the judiciary level. 

Our country will face more pressing climate challenges in the coming years than ever before as we continue to exploit natural resources and experience the repercussions of our collective actions. As with many issues important to the country, the Supreme Court will be at the wheel in deciding how to proceed on these challenges. When it comes to climate, Justice Barrett and the increasingly conservative court have an obligation to interpret the law in proportion to the urgency of the crisis.

 Daria Farman-Farmaian is a sophomore in Georgetown's School of Foreign Service from New York City. She is interested in global issues surrounding gender, climate change, human development and democracy.