Why Amy Coney Barrett’s Confirmation to the Supreme Court Would Be Catastrophic for the Environment

| Reproaction

By: Caitlin Blunnie

Everyone deserves the right to live in safe and healthy communities. Both the reproductive justice and environmental justice movements understand that living in a healthy environment is essential. Yet decades of climate change denial paired with the Trump administration’s callous work to roll back environmental protections has jeopardized the future of many communities.

It is no secret that the Trump administration has confirmed a historic number of federal judges, and as a result nearly a quarter of all active federal judges are Trump appointees. [1] Despite the number of judicial appointees, courts have continued to rule against the administration, citing that in many cases the administration had not considered the impact on climate change and the environment. In Trump’s first term, the Environmental Protection Agency (EPA) only won nine of the 47 cases it brought forward while the Interior Department has won four of 22. [2]

Adding another conservative judge to the Supreme Court would give the Trump administration the supermajority they need to set their aggressive environmental deregulation plan into motion. Making things scarier, Trump’s nominee, Amy Coney Barrett, has not said where she stands on many environmental issues though her past statements and rulings give us reason to be concerned. As climate change continues to worsen, we must have a judiciary that puts the needs of communities and the planet before the interests of corporations.

Here’s what you need to know about Trump’s new Supreme Court nominee Amy Coney Barrett, and her stance on the environment:

1. Environmental Protections

We need clean water and air to survive. Despite this, the Trump administration has worked to roll back clean water protections that are a part of the 1972 Clean Water Act. The Clean Water Act designates federal protections for “all waters of the United States” and requires developers to acquire a permit from the U.S. Army Corps of Engineering, which sets the guidance to minimize environmental harm, such as water pollution. [3]

In 2018, a housing developer sued the U.S. Army Corps of Engineering to build on 13 acres of federally protected Illinois wetland. The Army Corps ruled that the wetlands were off-limits, citing the Clean Water Act, and while Barrett didn’t write the ruling, she signed onto a decision siding with the developer, forcing the agency to reconsider its determination. [4]

Conservatives have also expressed interest in revisiting the Chevron deference, which came from Chevron v. Natural Resources, a 1984 Supreme Court decision that allows federal agencies to interpret and enact legal statutes on its own when Congress has failed to provide clarity. [5] Both the ruling and subsequent doctrine are significant because they have allowed the EPA to pursue regulations to reach the goals of the Clean Water Act. Five of the current Supreme Court Justices however have indicated that they want to revisit the case, and Barrett’s confirmation to the court could aid in overturning the decision altogether, destroying decades of environmental protection and the ability of the EPA to do its job. [6]

2. Pipelines

There are more than 2.5 million miles of pipelines in the United States that transport natural gas. Pipelines have long been criticized by environmentalists for being dirty, dangerous and unnecessary. Not only do pipelines cause harm to land and waterways, but with age, spills and accidents are inevitable. [7] Regulation can help ensure pipelines are safer, but it isn’t likely with the Trump administration’s aggressive campaign to relax regulations for corporations.

Federal courts have played an essential role in ensuring communities can to live and prosper without dangerous pipelines. Both the Mountain Valley and Atlantic Coast pipelines were stopped after a federal appeals court ruled that permits were issued without properly assessing the environmental impacts. [8] Similarly in 2018, a federal judge halted construction on the Keystone XL Pipeline after finding the Trump administration violated laws by ignoring facts about climate change. [9]

While Amy Coney Barrett hasn’t stated her stance on pipelines, there are clear signs that show that she would put the needs of corporations over communities. Her father was an attorney for Shell Oil Co. and her husband lists “advised a petroleum producer in a regulatory proceeding concerning allocation of proceeds from the Alaskan oil pipeline;” as an accomplishment in his legal career. [10,11] We can also look to the groups who are spending money to get Barrett onto the Supreme Court. The super PAC America First Action has spent more than $60 million on ads and messaging for Barrett. One of America First Action’s largest donors is Kelcy Warren, billionaire and CEO of Energy Transfer Partners, which is responsible for the development and construction of the Dakota Access Pipeline. [12] The Dakota Access Pipeline is one of the most controversial pipelines and was rushed to completion despite environmental concerns and the destruction of land belonging to the Standing Rock Sioux tribe. The pipeline right now is in the midst of a legal battle that is likely to make it to the Supreme Court. [12]

3. Community Rights and Third-Party Standing

Third-party standing is an issue we’ve seen discussed in court cases related to abortion and the rights of incarcerated people, but it is also an issue for people and their right to live in healthy communities. Third-party standing is the legal concept that a third party can argue on behalf of the person(s) impacted. To gain third-party standing rights, a person or group must demonstrate that they have been injured. Like many conservatives, Barrett’s record suggests that she has a narrow interpretation of standing. In a lawsuit brought against the Chicago Parks District by community members, Barrett rejected all of the community members’ claims and ruled that they had no standing as taxpayers, stating, “the plaintiffs can’t repackage an injury to the park as an injury to themselves.” [13]

Ultimately, environmental injustices disproportionately impact women of color, and people living in low-income or rural areas. These communities are more likely to live near a Superfund site or hazardous-waste dump that hinders their ability to access safe water and clean air. People in these communities are more likely to face serious health hazards including increased risk of developing breast cancer, birth defects, spontaneous miscarriages, and infertility. Some justices on the Supreme Court are already skeptical of whether groups and people have the right to sue the government over injury or harm caused by climate change. Notably, in 2007, the Supreme Court heard Massachusetts v. EPA, a case in which 12 states sued the agency to regulate greenhouse gas emissions. In the court’s 5-4 decision, it was found that the plaintiffs did have standing, however only one of those justices remain on the court today. Both Chief Justice Roberts and Associate Justice Thomas have derided the notion of third-party standing and in Justice Roberts’ dissenting opinion in 2007, he argued that global warming was “harmful to the humanity at large” and that regulations of greenhouse gases wouldn’t change the problem. [14]

If Barrett were to be confirmed to the court, her narrow interpretation of third-party standing could severely limit our ability to fight for our right to a clean environment.

Ultimately, the courts have yet to rule on the Trump administration’s biggest rollbacks of clean water rules, curbs to greenhouse gas emissions, and environmental reviews of infrastructure projects. Confirming Amy Coney Barrett would make it easy for the court to uphold the administration’s efforts to gut environmental protections impacting the health and livelihood of future generations.

While Amy Coney Barrett does not have a lot of experience ruling on cases involving the environment, there is plenty of evidence that shows she will prioritize the rights of corporations over the people. [15] It is also no coincidence that the multimillion-dollar campaign to get Barrett to the Supreme Court is being led in large part by the interests of large oil and gas companies. [16]

If Amy Coney Barrett is confirmed to the Supreme Court, the consequences and damage to the environment may be immediate and irreversible. The Supreme Court is already scheduled to look at two environmental cases this session: the Sierra Club v. Fish and Wildlife Service which “focuses on the government’s refusal to hand over documents requested through the Freedom of Information Act” and Kane County, Utah v. the United States, a case that is fighting environmental groups and their right to have a say in “the ownership of public lands.” [16] In both cases, Amy Coney Barrett’s confirmation to the court would give conservatives the clear path they need to ensure the rights of corporations are prioritized over the rights of people.

  1. https://www.pewresearch.org/fact-tank/2020/07/15/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/
  2. https://policyintegrity.org/trump-court-roundup
  3. https://earthjustice.org/blog/2019-october/what-the-trump-administration-is-doing-to-your-water
  4. https://grist.org/politics/amy-coney-barretts-environmental-track-record-is-sparse-but-concerning
  5. https://www.law.cornell.edu/supremecourt/text/467/837
  6. https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/amy-coney-barrett-s-confirmation-could-erode-us-epa-s-authority-on-climate-rules-60513227
  7. https://www.propublica.org/article/pipelines-explained-how-safe-are-americas-2.5-million-miles-of-pipelines
  8. https://www.sierraclub.org/michael-brune/2018/08/trump-pipelines
  9. https://www.washingtonpost.com/nation/2018/11/09/keystone-xl-pipeline-blocked-by-federal-judge-major-blow-trump-administration/
  10. https://www.eenews.net/stories/1063714449
  11. https://southbank.legal/team/jesse-barrett
  12. https://www.mic.com/p/these-shadowy-groups-are-spending-millions-to-put-amy-coney-barrett-on-the-supreme-court-37900176
  13. https://law.justia.com/cases/federal/appellate-courts/ca7/19-3333/19-3333-2020-08-21.html
  14. https://grist.org/politics/why-amy-coney-barrett-on-the-supreme-court-would-be-a-climate-disaster/
  15. https://www.accountable.us/news/report-coney-barrett-sided-with-corporations-over-people-76-of-the-time/
  16. https://www.mic.com/p/how-might-amy-coney-barrett-rule-on-environmental-issues-35036440
Stay Connected

Support The Cause

donate now

Take Action

Find a campaign and take action now