Environmentalists are sounding the alarm over Judge Amy Coney BarrettAmy Coney BarrettLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Biden's Supreme Court commission ends not with a bang but a whimper Biden's Supreme Court reform study panel notes 'considerable' risks to court expansion MORE’s comments this week casting doubt on the science of climate change, saying her remarks should disqualify her from sitting on the Supreme Court.
During two days of questioning at her Senate confirmation hearing, Barrett called climate change a “contentious matter of public debate” and said she didn’t think her “views on global warming or climate change are relevant to the job I would do as a judge.”
Earlier, she told the Senate Judiciary Committee she did not have “firm views” on climate change.
Her comments sent ripples through the scientific community given the overwhelming evidence of human-driven climate change.
Kym Hunter, a lawyer with the Southern Environmental Law Center, said Barrett’s conservative and originalist viewpoints don’t “automatically mean to me that she would essentially question the reality of climate change. Those things don't need to go together.”
“So her comment seemed much more ideological and much more in line with strict conservative talking points and ideology than I would expect from someone of her intellect,” Hunter added.
Vicki Arroyo, director of the Georgetown Climate Center, who like Barrett is from southern Louisiana, said lived experience alone should make it easy to answer questions on climate change without getting into specifics on cases.
“To actually say ‘I'm [certainly] not a scientist,’ as if that absolves her from having an opinion or enough knowledge to acknowledge its existence, sends a clear signal,” Arroyo said, calling climate denial a Republican talking point that’s diminishing in favor.
Arroyo said Barrett could have been as forthcoming as she was when responding to other questions about whether smoking causes cancer and whether coronavirus is infectious.
“There’s as much if not more evidence” on climate change, she said. “Any uncertainty left has been to show the impacts are more severe and happening at a faster rate than anyone who worked on this over the last 30 years predicted.”
The court might hear challenges to a number of Trump administration rollbacks, some of which would likely involve consideration of climate change. Federal courts are already hearing challenges to the administration’s Affordable Clean Energy Rule, which repealed emissions caps at coal-fired power plants, and its rollback of clean car standards and the bedrock National Environmental Policy Act.
Joseph Goffman, executive director of Harvard Law’s Environmental and Energy Law Program, warned that if the clean energy rule case made it to the Supreme Court, industry briefings on the power plant rule could lead to questions on a court precedent that established the EPA’s authority to regulate greenhouse gas emissions.
“If the court decides to take up again the fundamental question that was decided in Massachusetts v. EPA, that’s where you would start to worry about her professed doubts about the science of climate change,” added Goffman, who also served as an EPA lawyer during the Obama administration.
However, he said Barrett’s views on climate change wouldn’t necessarily mean she would rule to overturn climate or emissions-related cases; whether she feels an obligation to continue with past precedent would be another major factor.
“If the premise of the issue was that human-caused climate change was an established fact, I think she would be as much likely to be bound by precedent...as she would by her own views of science,” he said, adding that the “specific legal context” of the issues would also be important determinants.
Climate change is poised to become an increasing topic of discussion in the Supreme Court. A number of states are pursuing litigation against oil giants, seeking to hold them responsible for their role in producing climate-warming fossil fuels.
Recently, the high court decided to take up a jurisdictional issue affecting one of those cases, in which several oil companies are being sued over climate change by the city of Baltimore.
Barrett, however, would be unlikely to consider some of those cases, including the Baltimore one, because she has recused herself from matters that involve Shell, a defendant in that case. Her dad worked as a lawyer for Shell during much of his career, according to The Washington Post.
Ann Carlson, a professor at the University of California Los Angeles’s law school said that Barrett's ideology may lead to skepticism about these kinds of cases.
"There are efforts by the oil companies to get the cases heard in federal court and ultimately dismissed. Those arguments tend not to be about whether climate change is real or not. They tend to be about why federal courts shouldn't be in the business of deciding these cases or why courts more general shouldn't be," said Carlson, who has done some pro-bono consulting for the accusers in these types of cases.
"If you're skeptical about climate change does that make you more likely to rule in favor of the oil companies? It probably makes you more suspicious of the cases overall," Carlson said.
Those liability cases could leave the industry on the hook for billions of dollars in payments to those who can successfully argue fossil fuels are responsible for the catastrophic disasters and impacts they face.
“Now that we’re seeing these impacts, what’s going to happen to the cities, states and individuals most affected, and who’s going to pay for the damage?” asked Arroyo.
Barrett said during her confirmation hearing that her lack of knowledge on the science of climate change wouldn’t be an issue, given that the court relies on the government’s own scientific findings used to craft agency rules.
“The Administrative Procedure Act does require courts to defer to agency fact-finding and to agency regulations when they’re supported by substantial evidence," said Barrett, who currently serves on the 7th Circuit Court of Appeals.
"I don't think that my views on global warming or climate change are relevant to the job I would do as a judge nor do I feel like I have views that are informed enough, and I haven't studied scientific data. I'm not really in a position to offer any kind of informed opinion," she added later.
Some have compared climate change to the court’s reliance on DNA evidence -- even if judges aren’t an expert themselves, they understand the broad strokes of the process.
“DNA is a good analogy. There are lots of things that courts just recognize as being true and look at how the law works around those concepts,” Hunter said.
“You don't need to be a scientist or climate scientist to accept some basic, fundamental facts.”
Environmental groups have called on senators to reject Barrett’s nomination, even though Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellFixing Congress requires fixing how it legislates McConnell: GOP should focus on future, not 'rehash' 2020 Hoyer: Democrats 'committed' to Oct. 31 timeline for Biden's agenda MORE (R-Ky.) said Republicans have the votes to confirm her before Election Day.
“The idea that a nominee to a lifetime position on the Supreme Court has not developed a view on the existential threat of climate crisis is inexcusable and disqualifying for a position that will have a significant impact on our ability to address climate change,” the League of Conservation Voters wrote in a letter to the Senate.
“The overwhelming evidence of human-caused climate change is not up for debate, and judges willing to ignore or disregard scientific facts for political purposes are unfit for the bench.”
Updated at 6:35 p.m.