The Energy 202: How Amy Coney Barrett may make it harder for environmentalists to win in court

In accepting the nomination in a Rose Garden ceremony Saturday, Barrett praised Ruth Bader Ginsburg, the late justice whose seat she would be taking.

"Should I be confirmed,” Barrett said, “I will be mindful of who came before me.” 

But Barrett’s rulings on the U.S. Court of Appeals for the 7th Circuit seem to part with the liberal icon’s broad view of who can sue to enforce environmental statutes.

Democrats will focus on Barrett's views on abortion and Obamacare. But Barrett’s impact on environmental law may be just as significant. 

One of the biggest potential impacts of Barrett’s presence on the high court would be on who has standing to bring an environmental lawsuit.

While serving on the appellate court covering Illinois, Indiana and Wisconsin, Barrett wrote the majority opinion in at least two cases — including one brought by a park preservation group against the construction of Barack Obama’s presidential center in Chicago — denying opponents standing in court to sue. 

Her more restrictive view on who has standing is in line with that of the conservative icon Scalia.

Barrett was a clerk for Scalia in 1999 when the Supreme Court agreed to hear what would turn out to be a major ruling, written by Ginsburg, that opened the door for environmental groups to sue industrial polluters. 

Ginsburg’s decision in Friends of the Earth v. Laidlaw Environmental Services greatly expanded the ability of citizens sickened by pollution to seek a remedy from the courts. Scalia was only one of two justices to dissent in the 2000 case.

“It was a huge defeat for Justice Scalia,” said Robert Percival, a professor of environmental law at the University of Maryland, adding: “I am convinced that Judge Barrett would take us back to the pre-Laidlaw days.”

There are signs Barrett could help cement the Trump administration's environmental rollbacks for decades.

She signed on to a majority opinion in 2018 reversing a lower-court decision saying 13 acres of Illinois wetlands were subject to protection under Clean Water Act from being developed by a home builder.  

At the center of that lawsuit was the Obama administration’s expansion of which bodies of water are regulated under the law. Claiming the rule has cost jobs, the Environmental Protection Agency under Trump has sharply limited federal protection for waterways.

Jamal Raad, campaign director for Evergreen Action suggested her presence on the court will make it more difficult for future administrations to tackle climate change, too. “We should all be clear," he said in a statement. “Amy Coney Barrett’s nomination would give corporate fossil fuel interests a 6-3 majority on the Supreme Court to block climate action.”

The addition of a sixth Republican-nominated justice to the court would raise the bar for any challenges from environmental groups to that and other regulatory rollbacks from the Trump administration.

With Ginsburg’s death, the court’s three-member liberal bloc would need the support of at least one conservative to add a case to the Supreme Court’s docket.

At the same time, Barrett deeply cares about how the American public sees the Supreme Court.

As a professor at Notre Dame Law School, Barrett placed a “distinctive amount of weight on Americans' perception of the Court's legitimacy,” said Evan Bernick, executive director of the Georgetown Center for the Constitution who has studied Barrett's legal scholarship.

It is that impulse to preserve the court's legitimacy that has led Chief Justice John G. Roberts Jr. to sometimes side with liberals in environmental cases —including upholding the EPA's ability to regulate greenhouse gases in 2014 even though he dissented in the initial 2007 case.

In a 2013 Texas Law Review article, Barrett did not argue erroneous precedents must be immediately overturned, noting judges do not “always have an agreed-upon standard for identifying ‘error.’”

But in the same article, she wrote “the public response to controversial cases like [Roe v. Wade] reflects public rejection of the proposition that stare decisis" — the principle that courts should be follow precedent —"can declare a permanent victor in a divisive constitutional struggle.” 

One important precedent for the environment that the more conservative court may whittle away is Chevron deference.

That doctrine, established in 1984, requires courts to yield to agencies’ interpretations of the law when statutes are ambiguous. Some conservative judges — particularly Justice Neil Gorsuch — have sought to weaken that precedent, which was crucial for the Obama administration's efforts to combat climate change using the Clean Air Act.

Barrett isn't entirely opposed to deferring to federal agencies. In a dissent this year, Barrett deferred to the Trump administration after the Department of Homeland Security issued rules making it harder for immigrants who have relied on public assistance to get permanent residency.

Still, Bernick said his “expectation remains that she will join in Justice Gorsuch's successful-thus-far project" in taking the bite out of Chevron.

At the White House over the weekend, Barrett said she shares Scalia's views on the law. "His judicial philosophy is mine, too," she said.

But Scalia, who joined the court in 1986, changed his own views on the doctrine during his three decades on the court, become less deferential to the executive branch over time. 

"If she shares the views Justice Scalia held when she clerked for him, she will be a fierce defender of Chevron deference," Lisa Heinzerling, a professor of environmental and administrative law at Georgetown, said of Barrett. “If she shares the views he held in his later years, she will be a skeptic of Chevron and a fierce defender of the Court's power to undo or weaken acts of Congress.”

“The question for me is, which Justice Scalia will she be?” she said.

Power plays

A Montana judge ousted the BLM's temporary director.

 “An order by the chief judge of the Montana federal court on Friday not only ousted William Perry Pendley as the top official at the Bureau of Land Management but might also invalidate a wide range of decisions he took to open up vast parts of the American West to oil and gas drilling,” our colleague Steven Mufson reports.

The judge said that Pendley — who had served as the BLM’s acting director for 214 days beyond the time limit permitted by the Federal Vacancies Reform Act — did not have the authority to act as the agency’s director without confirmation by the Senate. 

“If this case becomes a template in other districts, then it would follow that all other land use plans that have been approved during Pendley’s illegal tenure could also get thrown out,” Aaron Weiss, deputy director of the Center for Western Priorities, told Mufson. “The potential implication there is stunning — effectively erasing all of the planning work BLM has finalized over the last year, possibly longer.”

The court case was brought by Montana Democratic Gov. Steve Bullock, who is in a tight Senate race against incumbent Republican Steve Daines. Bullock objected to resource management plans signed by Pendley that would have opened up large swaths of land in southerwestern Montana to oil and gas drilling.

On Twitter, the Interior Department promised to fight the decision.

While Pendley was formally nominated to head the public lands agency this summer, Trump withdrew the nomination after widespread backlash. Even after the nomination was withdrawn, however, Pendley continued in his acting capacity.

Trump said he will extend an offshore drilling moratorium to North Carolina and Virginia.

Trump announced the move during a campaign rally in Newport News, Va. on Friday night.

“Because I happen to like this state a lot, I said, 'What about Virginia? What about North Carolina?' “ the president told the crowd. ”And somebody said, ‘I don’t know. I don’t know if they like it.’ I said, ‘I think they like it.’ So I’m extending the moratorium to North Carolina and Virginia.”

The extension comes after a coalition of Democratic lawmakers from Virginia wrote a letter to the president last week requesting the ban extend to Virginia. Around the same time, Republican Sen. Thom Tillis of North Carolina announced he had spoken to the president and secured a promise the moratorium would  include his state.

Trump announced an offshore drilling ban for South Carolina, Georgia and Florida on Sept. 8. Recent court filings, however, show that the moratorium still leaves the door open for companies to search for oil under the sea floor using sonic blasts, a practice that can harm marine wildlife.

The EPA has prepared a new rule on lead testing.

“The Environmental Protection Agency is preparing to overhaul the way communities test their water for lead, a policy change that will be pitched ahead of Election Day as a major environmental achievement for a president not noted for his conservation record,” the New York Times reports.

"But a draft of the final rule obtained by The New York Times shows the E.P.A. rejected top medical and scientific experts who urged the agency to require the replacement of the country’s six million to 10 million lead service lines, an expensive but effective way to avoid crises like the one still afflicting Flint, Mich,” the Times reports.

The rule is the first major update on federal legislation regulations on lead in drinking water in nearly three decades. It would require water utilities to publicly report inventories of their lead service pipes, speed up the timeline by which schools and day cares must report a positive test for lead in their drinking water, and help ensure high-risk communities have a plan for reducing lead levels.

But the new rule would nearly double the time that service utilities have to replace lead service from 14 years to 33 years, and some former EPA officials said that career scientists were sidelined in the process of developing the new regulation.

The Interior Department is postponing a race and diversity training series.

The agency said in an email that it would postpone its Equity, Diversity, and Inclusion Conversations, a training series designed to help managers and staff promote an inclusive workplace, E&E News reports.

The move comes after a Sept. 4 Office of Management and Budget memo instructing agencies to suspend trainings on “critical race theory” or “white privilege.” Following that memo, the EPA also suspended a speaker series on racial justice and the environment.  

The email, sent by Erica White-Dunston, director and chief diversity officer in Interior's Office of Civil Rights, said that the department’s “preliminary assessment” suggests the training series would not fall afoul of the OMB memo, but that it was being suspended “out of an abundance of caution” while the agency awaits further guidance.

Youth activist renewed climate strikes in spite of the coronavirus.

Social distancing restrictions imposed to control the spread of the coronavirus have largely tamped down environmental demonstrations this year. But on Friday youth activists resumed widespread protests, with climate strikes scheduled in than 3,500 places around the globe, Grist reports.

“Friday’s strikes — some in the form of mostly socially distanced physical marches on the streets, and some purely online meetings — were on a smaller scale and far more subdued than last year’s September week of action, in which at least 6 million people around the world were estimated to have taken part,” Grist writes.

Greta Thunberg, the Swedish youth activist who sparked a global movement, led a strike in Stockholm. The strikes occurred as world leaders meet, mostly online, for the U.N. General Assembly.

Thermometer

Heat wave and dry winds threaten to make fires worse in California.

“California’s unprecedented wildfire siege just won’t end. The blazes that began in mid-August have burned a record expanse of more than 3.7 million acres and killed 26, according to Cal Fire,” Andrew Freedman and Diana Leonard report for The Post. “Now, a prolonged period of near-record heat is combining with periods of strong, dry winds across much of the state, from the Oregon border south to the San Francisco Bay area and, eventually, in Southern California, as well.”

The weather pattern could spread existing fires and spark new ones. On Sunday, there were reports of a growing blaze in Napa County that prompted evacuations. Much of Northern California is under warnings for high fire danger through Monday evening. Later in the week, high winds could exacerbate fires in Southern California’s inland mountains.

“California is only now getting into its traditional land-to-sea wind season, when it typically sees some of its worst wildfires,” Freedman and Leonard write.

Pacific Gas & Electric, the state’s largest utility, has said it plans to cut power to 89,000 customers across 16 counties to reduce the risk that downed power lines spark new blazes.

A new study suggests that the North Atlantic coast may see more frequent and intense hurricanes.

A new peer-reviewed study in the American Meteorological Society’s Journal of Climate found that climate change may cause more tropical storms and that those storms will be more severe, intensify more quickly, and have the potential to stall for longer periods over particular areas, dumping rain and exacerbating flooding, Tristram Korten reports for The Post.

Scientists believe that climate change will cause more intense hurricanes, but there is not a widespread scientific consensus that it will cause them to increase in frequency.

Timothy Hall, a senior research scientist at NASA’s Goddard Institute for Space Studies, described the new study as “a bit of an outlier” on storm frequency. “However, there is pretty good consensus that there will be an increase in intensity,” he said.

The 2020 hurricane season has been abnormally active, shattering previous records and spawning so many storms that forecasters have run out of names and resorted to Greek letters.