President Trump today selected Amy Coney Barrett to fill the seat of the late Justice Ruth Bader Ginsburg on the nation's highest bench.
If confirmed, Barrett, 48, will become the Supreme Court's sixth Republican-appointed justice, replacing one of the court's most liberal members and deepening a conservative majority on the bench that could affect the outcome of environmental litigation for decades.
"The courts in general and the Supreme Court in particular are not going to be much help on confronting the major environmental challenges we face," Vermont Law School professor Pat Parenteau wrote in an email.
Barrett accepted the nomination at the White House this afternoon, highlighting Ginsburg's achievements on the high court.
"She not only broke glass ceilings," Barrett said of Ginsburg. "She smashed them."
Barrett's record on environmental and energy issues is largely undeveloped, but several environmental groups voiced concern about Barrett's narrow view of public interest groups' power to sue in opinions she wrote as a judge for the 7th U.S. Circuit Court of Appeals, where she has served since 2017.
In a ruling this summer, Barrett blocked an effort by a park preservation group and Chicago residents to stop construction of the Obama Presidential Center in the city's Jackson Park.
The challengers' lack of standing "pulls the rug out from under their arguments," Barrett wrote.
She also signed on to a 2018 decision that asked the Army Corps of Engineers to revisit its decision that placed 13 acres of Illinois wetlands off-limits to a housing developer.
"Her slim judicial record shows that she's hostile to the environment and will slam shut the courthouse doors to public interest advocates, to the delight of corporate polluters," Brett Hartl, government affairs director at the Center for Biological Diversity, said in a statement yesterday.
Ginsburg, on the other hand, penned the Supreme Court's opinion in the oft-cited 2000 case Friends of the Earth v. Laidlaw Environmental Services, which took a broad view of environmentalists' standing to bring lawsuits (Greenwire, Sept. 19).
If Barrett is confirmed, the bench's three remaining liberal justices — Stephen Breyer, Elena Kagan and Sonia Sotomayor — will need the support of their conservative colleagues to grant any petition, potentially making it much more difficult for environmental groups to challenge Trump administration rules at the high court. The court requires that four justices agree to take up a case and accepts fewer than 1% of cases.
Chief Justice John Roberts has become known for siding with the liberal justices in decisions with impact for environmental rulemaking, but his power as a swing voter would be diluted if a sixth conservative justice were added to the bench. Observers have pointed to Trump's two other appointees — Justices Neil Gorsuch and Brett Kavanaugh — as the court's new potential center.
"I would expect that it will be tougher for EPA to act as aggressively with an Amy Coney Barrett on the Supreme Court than it was with a Ruth Bader Ginsburg," said Tom Lorenzen, head of the environment and natural resources practice at Crowell & Moring LLP.
'Reading tea leaves'
While Barrett's judicial record is light on environmental issues, legal experts have pointed to her writings on administrative law as an indicator that she might favor a tighter rein on federal regulatory efforts on issues like greenhouse gas emissions.
In a 2018 analysis for the Yale Journal on Regulation, Georgetown University visiting law professor Evan Bernick found that Barrett appeared to take a "rule-like" approach to interpreting statutes like the Clean Air Act (Greenwire, Sept. 19).
"Conservative textualists like Judge Barrett want to view statutes as unambiguous, which constrains the flexibility of agencies and leaves little room for innovation," said Justin Pidot, co-director of the University of Arizona's environmental law program. "This could spell real trouble for efforts to address the most pressing environmental issues we face, like climate change and environmental justice concerns."
Textualism — the idea that laws should be interpreted based on their plain language — was famously championed by the conservative Justice Antonin Scalia, but the approach doesn't dictate whether a ruling aligns with any particular ideology.
Gorsuch used the philosophy to determine in Bostock v. Clayton County, Ga. last term that Title VII of the Civil Rights Act protected workers from being fired on the basis of their sexual orientation or gender identity. The decision gave environmental lawyers hope that the court, despite its conservative bend, could eventually rule in favor of stronger climate regulations (Climatewire, June 18).
"You're of course reading tea leaves with a lot of this stuff," said Lorenzen, who spent 10 years as an environmental attorney at the Justice Department. "But my guess is Barrett will take a more conservative approach."
'Resist this pick at all costs'
Trump's pledge to swiftly replace Ginsburg set off a furious partisan battle in Congress last week.
Senate Majority Leader Mitch McConnell (R-Ky.) has said he will hold a vote on Trump's Supreme Court pick, and Senate Judiciary Chairman Lindsey Graham (R-S.C.) has said he will schedule a nomination hearing.
Democrats have pushed back, noting GOP lawmakers' efforts to block President Obama's pick of U.S. Court of Appeals for the District of Columbia Circuit Judge Merrick Garland to replace Scalia, who died nearly nine months before the 2016 election.
Trump took office in 2017 and tapped Gorsuch for the seat.
"Senate Democrats need to be prepared to resist this pick at all costs," said Brian Fallon, executive director of the judicial reform group Demand Justice, in a statement yesterday.
During her nomination hearing for her 7th Circuit seat, Barrett, who is Catholic, faced questions from Judiciary Committee Democrats about whether her faith would affect her work as a judge. At issue was a 1998 article she co-wrote that said Catholic judges face a moral and legal dilemma in death penalty cases.
Five of the Supreme Court's current justices are Catholic.
The Senate panel eventually approved Barrett's nomination to the 7th Circuit, and the full chamber voted 55-43 to confirm her, with three Democrats in support.
Barrett, who has taught at Notre Dame Law School since 2002, had been on Trump's radar for the Supreme Court for some time. She was reportedly a pick for the seat Kavanaugh filled in 2018.
Before coming to Notre Dame, Barrett clerked for Scalia and for D.C. Circuit Judge Laurence Silberman. She previously worked at the firm Miller, Cassidy, Larroca & Lewin LLP in Washington.
She is a graduate of Rhodes College and Notre Dame Law School.
Reporter Jeremy P. Jacobs contributed.
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