David Lindsay: I’m afraid that the apple doesn’t usually fall far from the tree.
“During two grueling days of questioning over her Supreme Court confirmation, Judge Amy Coney Barrett did her best to avoid controversy. But her efforts to play it safe on the subject of climate change have created perhaps the most tangible backlash of her hearings.
In her responses, the nominee to take the place of Ruth Bader Ginsburg, an environmental stalwart, used language that alarmed some environmentalists and suggested rough going for initiatives to fight climate change, if as expected she wins confirmation and cements a 6-3 conservative majority on the court.
On Thursday, the last of four days of confirmation hearings, Republicans on the Senate Judiciary Committee set a committee vote on Judge Barrett’s nomination for Oct. 22 hoping to speed a final vote to as soon as Oct. 26 — one week and a day before Election Day.
As she did on judicial matters, such as her views on Roe v. Wade, Judge Barrett declined to state her thoughts on climate change in exchange after exchange this week, equating her evasions to the well-established precedent of refusing to comment on issues that could come before the court.
But with Senator Kamala Harris of California, the Democratic candidate for vice president, Judge Barrett, the daughter of an oil executive, went further. She described the settled science of climate change as still in dispute, compared to Ms. Harris’s other examples, including whether smoking causes cancer and the coronavirus is infectious.
“Do you believe that climate change is happening and threatening the air we breathe and the water that we drink?” Ms. Harris asked.
Judge Barrett responded, “You asked me uncontroversial questions, like Covid-19 being infectious or if smoking causes cancer” to solicit “an opinion from me on a very contentious matter of public debate,” climate change.
“I will not do that,” Judge Barrett concluded. “I will not express a view on a matter of public policy, especially one that is politically controversial.”
Republicans showed no sign of discomfort with that answer. But her performance raised alarm bells around the world. Greta Thunberg, the young Swedish climate activist, took to Twitter to quip, “To be fair, I don’t have any ‘views on climate change’ either. Just like I don’t have any ‘views’ on gravity, the fact that the earth is round, photosynthesis nor evolution.”
“. . . . A Justice Barrett could have real effects on efforts to address climate change.
The prior jurisprudence is clear. In the 2007 case Massachusetts v. the Environmental Protection Agency, the Supreme Court declared that greenhouse gases are covered under the Clean Air Act and that the agency can act to counter climate change. In 2009, the E.P.A. issued what is known as the “endangerment finding,” which said that greenhouse gases endanger public health and welfare. That finding was challenged in the courts and survived: the Court of Appeals for the D.C. Circuit upheld the finding in 2012, and the Supreme Court declined to review the lower court’s decision, allowing it to stand.
If President Trump were to win a second term, Professor Revesz said, the government could withdraw the endangerment finding, and the inevitable court challenge could bring the fundamental question of climate change back before the Supreme Court.
There is also the question of how Judge Barrett would approach regulatory matters. Professor Carlson suggested that Judge Barrett would seek to interpret the E.P.A.’s powers narrowly. Other conservative members of the Supreme Court have indicated a willingness to revive a legal doctrine that holds that Congress should not give regulatory agencies much leeway in executing policies. With six votes, the conservative bloc could tie the hands of regulators.
“The future of the administrative state, in many respects, is on the line — and her refusal to answer basic questions about things like climate science makes me worry that we could see a whole dismantling of agencies that we have come to rely on for environmental protection,” she said.
Limits on administrative power would leave Congress with the task of being much more specific in drafting environmental legislation, Professor Gerrard said. “A very specific, well crafted law by Congress would be very hard for the courts to get around,” he said. Yet narrowly crafted laws don’t always adapt well to changing circumstances, as the years pass.
Leaving statutes vague, however, has been a way for Congress to finesse fights. A demand for specificity would make passage of environmental legislation even harder than it is now.
Judge Barrett’s family has strong ties to the fossil fuel industry.
Her father, Michael E. Coney, worked as a prominent attorney at Shell Oil in New Orleans and Houston for 29 years, from 1978 to 2007, focusing on deep sea exploration and drilling in the Outer Continental Shelf. As part of his work, he represented the oil and gas giant before the federal government, frequently dealing with the Department of Interior on royalties, regulations and compliance issues.
Mr. Coney was also an active member of the powerful oil and gas trade organization, the American Petroleum Institute, twice serving as chairman of its Subcommittee on Exploration and Production Law. On top of being the industry’s main lobby group, A.P.I. has played a critical role in casting doubt on climate science and opposing policies to address climate change.”