How Environmental Action Can Survive Another Conservative Supreme Court Justice

President Trump’s decision to replace the late Supreme Court Justice Ruth Bader Ginsburg with Amy Coney Barrett threatens our ability to address the climate crisis, environmental degradation, and biodiversity loss. If she is confirmed Barret is expected to make it difficult to limit greenhouse gas emissions and protect American laws that give people a legal right to clean air, clean water, a stable climate, and healthy ecosystems. Trump’s attempt to rush through his Supreme Court pick comes against the backdrop of his efforts to sow fears of election chaos and his failure to manage the COVID-19 pandemic which has led to the deaths of more than 200,000 Americans.

Democrats decry the hypocrisy of appointing a Supreme Court judge with only a bit more than a month to go before the election when Republicans refused to consider President Obama’s moderate Supreme Court pick Merrick Garland eight months before the election. The appointment is Trump’s third Supreme Court pick, and if it is rammed through by the Republican controlled Senate it will consolidate a 6-3 conservative majority.

Barrett is a 48 year old mother of seven children, who was confirmed in 2017 for her current judgeship on the 7th US Circuit Court of Appeals, which covers Indiana, Illinois and Wisconsin. She is a graduate of Notre Dame law school and she worked in the private sector before becoming a law professor at Notre Dame in 2002. Judge Barrett’s record on women’s reproductive freedoms, LGBTQ rights and health care are a cause for concern as are her views on the Second Amendment and immigration. Many are also concerned that Barrett will rule in favor of industry interests thereby undermining science based policy. She may make it more difficult to hold government and industry accountable by failing to stand up to corruption and privilege that undermine environmental protections. Barrett is a former law clerk to the late right-wing Justice Antonin Scalia who opposed the right of citizens, advocacy groups and community organizations to challenge government actions. Barrett may share the views of justices like John Roberts and Clarence Thomas, who resist the right to sue the government over climate change.

As explained by Earth Justice, judges matter for the environment and the Supreme Court matters most of all. Her record suggests that “she may be willing to strip government agencies of the power to protect the environment and to further close the courthouse doors to those seeking justice,” Earth Justice wrote in a statement. The environmental law advocacy group also said that Judge Barrett appears to be willing to undermine our environmental laws by reviving the nondelegation doctrine. “For 80 years, Supreme Court rulings have recognized that Congress cannot engage in the minutiae of federal regulation, and that Congress must be allowed to tell agencies like EPA to flesh out the details of our environmental laws. In recent years, right wing judges have sought to overturn these precedents on behalf of powerful corporate interests. Adding Justices who want to revive the nondelegation doctrine will undermine EPA’s ability to protect communities—especially communities of color—from pollution and climate change.”

Most concerning for environmentalists is her 2018 ruling that the Army Corps of Engineers had no authority to protect a wetland from destruction by a large development firm. There are also concerns about her ties to the fossil fuel industry. Grist describes her as a “climate disaster” saying that a 6-3 conservative supermajority might mean that “any policy to protect our planet from climate change will be struck down”. However, there is a way that that a conservative Supreme Court would not be able to kill environmental action. If, as expected Joe Biden defeats Trump and the Democrats take control of the Senate, clear, unambiguous, specific and detailed bills could be passed that leave little room for interpretation. This is a prophylactic against the “non-delegation doctrine” and make it very likely that any challenge would survive a Supreme Court challenge.