Barrett’s first term: ‘She may surprise some people’

By Pamela King | 07/06/2021 01:27 PM EDT

The Supreme Court’s newest justice closed out her first term with some surprising votes against the oil industry — but major tests of her views on climate change and other major environmental issues remain.

Supreme Court nominee Amy Coney Barrett during the third day of her confirmation hearings before the Senate Judiciary Committee in October 2020.

Supreme Court nominee Amy Coney Barrett during the third day of her confirmation hearings before the Senate Judiciary Committee in October 2020. Francis Chung/E&E News

The Supreme Court’s newest justice closed out her first term with some surprising votes against the oil industry — but major tests of her views on climate change and other major environmental issues remain.

President Trump’s nomination of Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg last year stoked fears among green groups and progressives that a 6-3 conservative bloc on the Supreme Court would easily build majorities to side with the fossil fuel industry over environmental interests.

But Barrett appeared to take a more nuanced approach in many of this term’s cases.


"She may surprise some people," said Robert Percival, director of the environmental law program at the University of Maryland. He later added: "This term showed that the conservative coalition doesn’t speak with one voice."

But although the term offered a "potpourri" of legal issues — such as land takings and Freedom of Information Act exemptions — that touched energy and environmental issues, Percival said, core questions of environmental law did not come before the court this year.

Among those open questions, he said, is who has the power to sue over issues such as climate change.

The issue of standing, as the legal doctrine is known, was a key question during Barrett’s confirmation process last year. Environmental groups read her opinion in a recent 7th U.S. Circuit Court of Appeals case related to the construction of the Obama Presidential Center in a Chicago park as an indication that Barrett would take a narrow view of standing (Greenwire, Sept. 26, 2020).

Her ruling in Protect Our Parks v. Chicago Park District appeared to fly in the face of the broad view of standing that Ginsburg took in the landmark environmental case Friends of the Earth v. Laidlaw Environmental Services in 2000, which said environmentalists could sue over pollution in a South Carolina river — even after the contamination had stopped.

Ginsburg found that environmentalists had raised "reasonable concerns" about the discharges and that they affected their "recreational, aesthetic, and economic interests."

Justice Antonin Scalia, Barrett’s mentor, dissented in the case. He decried the majority’s "watered-down requirements for initial standing."

The court didn’t address the issue of standing for environmental groups in any of its cases this term, but environmental lawyers have noted that an appeal of Juliana v. United States, the kids’ climate case, could invite a Supreme Court ruling that limits who can sue over planet-warming emissions.

The court did weigh in on standing for a coalition of Republican-led states in California v. Texas, a Patient Protection and Affordable Care Act case. In a 7-2 ruling led by Justice Stephen Breyer and joined by Barrett, the court said that the states could not show how they were harmed by the health care statute’s minimum essential coverage provision. It’s not yet clear whether that decision will have any implications for environmental standing.

Legal experts noted that Barrett has frequently voted alongside Chief Justice John Roberts and Justice Brett Kavanaugh, who emerged this term as the court’s new ideological center. The trio has had "controlling influence" in some of the court’s most significant cases, said Kannon Shanmugam, who leads the Supreme Court practice at the firm Paul, Weiss, Rifkind, Wharton & Garrison LLP.

"Whether that reflects a broader pragmatic streak on Justice Barrett’s part or whether it instead just reflects what we’ve seen over the years, which is a certain degree of caution on the part of new justices to the court, I think remains to be seen," Shanmugam said during a recent webinar hosted by the U.S. Chamber of Commerce.

"But I think when the headlines are written on this term," he continued, "the role of those three justices is really going to be front and center."

Conservatives v. liberals?

The only Supreme Court environmental ruling this term that split the justices along ideological lines was a property rights dispute in California.

In a 6-3 ruling, the court’s conservative justices struck down a California labor law that allowed union organizers access to private farmland. The court said the regulation was equivalent to taking a farmer’s property without just compensation (Greenwire, June 23).

"Chief Justice Roberts has done a good job of steering the court toward the middle ground," said Percival of the University of Maryland. "That didn’t happen with takings. He’s on board with doing more to protect property rights."

Roberts sided with PennEast Pipeline Co. LLC in its fight to seize state-owned land in New Jersey to build its natural gas pipeline (Energywire, June 30). Barrett led the dissent in PennEast v. New Jersey, a case that Vermont Law School professor John Echeverria called "ideologically muddled."

The case pitted pro-energy interests against advocates of state sovereignty — two key issues for conservatives. Roberts’ ruling was pro-pipeline, but legal experts said supporters of renewable energy should be optimistic about the decision’s implications for construction of transmission infrastructure.

"Gas is on its way out," said Echeverria. "Electricity is on its way in."

Although the justices reached unanimous decisions in two interstate water battles and a Superfund fight between the United States and Guam, they did hand down another 6-3 decision in HollyFrontier Cheyenne Refining LLC v. Renewable Fuels Association, which said that three small oil refineries could request extensions to waivers of biofuel blending requirements that had previously lapsed (Greenwire, June 25).

But in this case, the justices’ votes broke down along gender — rather than ideological — lines. Breyer joined the five men in the court’s conservative wing for a ruling in favor of the oil refineries. Barrett, joined by the two women in the liberal wing, wrote a dissenting opinion in favor of the biofuels groups.

"The conservative justices do not always agree on environmental issues," said Jonathan Adler, a law professor at Case Western Reserve University. "And the more conservative justices sometimes embrace positions favored by environmentalists."

Climate showdown (sort of)

The closest the Supreme Court came to addressing climate change this term was in a case that really wasn’t about climate at all.

In BP PLC v. Mayor and City Council of Baltimore, the justices sided with the oil and gas industry in its bid to get a fresh shot at challenging remand orders sending climate liability cases by Charm City and other state and local governments back to the state courts where they were originally filed.

The issue is part of a broader effort by oil and gas companies to move lawsuits seeking industry compensation for flooding, wildfires and other climate impacts into federal court, where they may be more likely to fail.

In a hyper-technical case, the Supreme Court considered whether federal appeals courts could review a broader range of issues in battles over remand orders. In a 7-1 ruling that was considered a win for the industry, the justices said the courts could (Greenwire, May 17).

The Supreme Court declined, however, to touch the oil industry’s broader request to rule that all climate liability lawsuits should automatically land in federal court.

The ruling prompted federal appeals courts across the country to go back and reconsider the jurisdictional question in the climate liability cases.

It will be many years before the courts get to the key question in the cases — whether industry will have to pay up for its contributions to climate change. The case could eventually make its way back to the Supreme Court.

Barrett, who had faced calls to recuse herself from BP v. Baltimore because of her father’s work for Shell Oil Co., joined the majority, but her vote didn’t make or break the case.

"This would be the not-even-close environmental term," said Jonathan Wood, formerly an attorney with the Pacific Legal Foundation who is now a research fellow at the Property and Environment Research Center.

He said of Barrett: "She’ll be a reliable conservative vote, but more of an institutionalist than a firebrand."

What’s next?

It’s not yet clear what environmental disputes the justices will tackle next term, which begins in October.

There are many issues — such as Clean Water Act jurisdiction and National Environmental Policy Act rules — that are still "blowing in the wind," said Vermont Law School professor Pat Parenteau.

"We seem to be a very long way from seeing any of these replacement rules ripen to the point where they’re likely to see anything from the Supreme Court," he said.

But there are also a number of pending and expected petitions on issues including EPA regulation of carbon dioxide emissions and the federal government’s responsibility to rein in climate change.

Republican states and a coal company have filed a pair of petitions asking the Supreme Court to review EPA’s authority to regulate greenhouse gas emissions from coal-fired power plants. The petitions stem from a ruling this year by the U.S. Court of Appeals for the District of Columbia Circuit that struck down the Trump administration’s Affordable Clean Energy rule, which gutted the Obama-era Clean Power Plan (Greenwire, May 5).

In the Juliana kids’ climate case, the young challengers appear poised to ask the Supreme Court to dig in on their argument that the federal government needs to phase out fossil fuels to ensure a healthy climate for future generations.

Judges for the 9th U.S. Circuit Court of Appeals reluctantly rejected the kids’ case last year, and environmental lawyers have urged Our Children’s Trust, the law firm behind the suit, to let the issue rest rather than give the Supreme Court’s conservative majority a chance to say that the young people don’t have standing for their claims.

The case may continue to play out in the lower courts if a federal judge in Oregon allows the Juliana challengers to narrow the scope of their lawsuit. That same judge has asked the Biden administration, which like the Trump and Obama administrations has pushed back against the Juliana claims (Climatewire, June 28).

But legal experts have questioned whether the federal government has any legally viable solutions to resolve the matter outside the courts.

"The Biden administration will be in a really awkward and ugly position because they’re going to be opposing the young progressives that helped put him in office," Parenteau said. "Fighting the kids like Trump did — the optics are terrible, but I don’t see any other options for them."