Why Amy Coney Barrett's addition to supreme court
may undermine climate fight
Barrett and five other conservative justices will
wield considerable influence on climate change policy
Emily
Holden in Washington
Tue 27 Oct
2020 00.14 GMTLast modified on Tue 27 Oct 2020 00.16 GMT
https://www.theguardian.com/us-news/2020/oct/26/amy-coney-barrett-supreme-court-climate-crisis-fight
The supreme
court is shifting right, at a pivotal moment when it could have the last word
on how much the US contributes to battling the climate crisis.
Amy Coney Barrett’s
addition to the court could leave an indelible mark on how fiercely the US, and
perhaps the rest of the world, can fight rising temperatures, even as
scientists warn society has just years to take serious action.
Barrett, a
48-year-old devout Catholic, has said she does not hold “firm views” on climate
change, calling it a “very contentious matter of public debate”. Because her
father worked in oil and gas, she has previously recused herself from cases
involving Royal Dutch Shell.
From
deciding the legality of climate regulations for polluters to determining
whether oil companies should pay for climate damages, Barrett and five other
conservative justices will wield considerable influence.
While
Barrett’s history of decisions on environmental issues is limited, her
appointment to the court by Trump – as his third justice in four years –
solidifies a transfer of power from an often progressive or moderate court.
“Adding one
more conservative justice just gives all the conservative justices more fuel to
be more political in what they’re going to do,” said Jean Su, an attorney who
directs the energy justice program for the Center for Biological Diversity.
Congress
has long been too divided to enact significant legislation on climate change.
Barack Obama turned to his agencies to write regulations for power plants and
cars. His Clean Power Plan for the electricity sector was stalled by the
supreme court before it took effect. Republicans say it was executive
overreach. Democrats say it was the only way forward.
Sarah Hunt,
a conservative attorney who promotes clean energy policy and co-founded the
Rainey Center thinktank, said courts should not be settling climate policy.
“It should
not matter what Amy Coney Barrett thinks about climate change,” said Hunt, who
like Barrett has been a member of the Federalist Society, which has helped seat
conservatives on the bench.
“Her entire
judicial philosophy, all that she stands for, is about being careful not to
legislate from the bench and respecting the role of Congress.”
If Donald
Trump wins re-election, the supreme court could be poised to side with his
administration on major rollbacks. If Joe Biden is in the White House, the court
could shoot down climate standards written by his agencies.
The legal
disagreements are unlikely to be about whether climate change is real and a
threat. Instead they could come down to whether a president has the authority
to write climate rules when Congress has refused to do so.
If one
particular case makes it to the supreme court, the justices could decide the
fate of millions of Americans – mostly people of color – who live in polluted
communities.
Nearly half
of US states are challenging the Trump administration’s decision to weaken
vehicle pollution standards. The administration has also tried to take away
California’s ability to set stricter rules than the rest of the country.
Shana
Lazerow, legal director for Communities for a Better Environment, which
organizes in California communities surrounded by refineries, highways, diesel
corridors and airports, said Barrett’s addition to the court could be devastating
to public health as well as the climate crisis.
“The people
who will be impacted the most are the low-income communities of color who
already bear a disproportionate burden of our society’s industrial activities,”
Lazerow said. “Striking down our climate protections is a specific act of
racism.”
Even if
Democrats take control of Congress and the White House, substantial climate
action will be politically difficult. Tommy Wells, the District of Columbia’s
director of the department of energy and environment, said cities will be able
to do most through local laws.
DC is
bringing one of the more than a dozen climate lawsuits from municipalities
against oil companies, but states and cities are finding it hard to prove a
single company is the direct cause of harm in a specific place.
One of the
first cases the supreme court will hear is from the city of Baltimore against
major oil companies. The justices will decide whether cities and states can
seek climate damages through state laws.
“We’ve
started having storms and internal flooding even though we’re situated on two
rivers,” Wells said. “It will cost the district a lot of money to protect our
schools, our utilities, the electric grid – to keep metro from flooding.”
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