COURIER illustration (Desiree Tapia)
COURIER illustration (Desiree Tapia)

How a conservative Supreme Court could make it harder for future presidents, Congress, and states to enact meaningful efforts to fight climate change.

On Sept. 29, 2000, then-presidential candidate George W. Bush appeared before a crowd in Saginaw, Michigan, where he announced his energy policy. The Texas Republican made a bold promise. 

“We will require all power plants to meet clean-air standards in order to reduce emissions of sulfur dioxide, nitrogen dioxide, mercury and carbon dioxide within a reasonable period of time,” Bush told the audience. 

Less than six months later, on March 14, 2001, Bush—a key ally of the oil and gas industry responsible for most of the emissions—reneged on his promise, writing in a letter to a group of senators that there was an “incomplete state of scientific knowledge of the causes of, and solutions to, global climate change and the lack of commercially available technologies for removing and storing carbon dioxide.”

In reality, the science was clear: greenhouse gases were a major contributor of climate change. The Bush Administration’s refusal to regulate greenhouse gases prompted Massachusetts, 11 other states, several cities and territories, and a coalition of environmental groups to file a lawsuit against the federal government over its inaction on climate change.

In November 2006, lawyers for the state of Massachusetts appeared before the US Supreme Court, arguing that the Environmental Protection Agency had a responsibility to regulate the emissions of greenhouse gases.

The Supreme Court agreed. In a 5-4 decision, the Court concluded greenhouse gases are pollutants under the 1970 Clean Air Act and decided the EPA was responsible for regulating greenhouse gas emissions as a result. The ruling in Massachusetts v. EPA was a landmark victory for the environmental movement and is responsible for many of the climate regulations and protections enacted over the past decade. But the gains achieved under the case could all be undone if Supreme Court nominee Amy Coney Barrett, a staunch conservative, makes it onto the bench. 

That is perhaps a fitting twist for 2020, a year in which the ravages of climate change went from something of an abstract notion to a visible part of daily life in America. Whether it was the record-setting wildfires and blood-red skies out West, record-setting heat waves in Arizona, devastating hurricanes along the Gulf Coast, or the powerful series of wind storms that leveled much of Iowa, the devastating consequences of a warming planet have become nearly impossible to ignore. 

Taking Away Power From the EPAand a Potential President Biden

Barrett’s nomination following the death of Justice Ruth Bader Ginsburg last month has sparked alarm among climate experts, who worry about what a 6-3 conservative majority on the court would mean for the environment.

“Barrett’s record has made clear her disdain for federal agencies and the public protections they issue, which puts our ability to tackle climate change directly in her crosshairs,” said Ben Driscoll, the judiciary program director at the League of Conservation Voters, an environmental advocacy group.

The conservative judge’s record on environmental cases is relatively thin, to the point where Robin Craig, an environmental-law scholar at the University of Utah College of Law in Salt Lake City, called her “a bit of a cipher.” But experts expect that if Barrett is confirmed, she is likely to adopt similar views as her fellow conservatives and make it more difficult for the federal government to address climate change.

One of the leading fears among climate and legal experts is that Barrett and her conservative allies will undermine the role of federal agencies in issuing environmental rules and regulations to combat climate change. Congress makes the laws, but federal agencies like the Environmental Protection Agency are charged with administering those laws.

Under the Massachusetts ruling, any environmental rollbacks, like the dozens pursued under Trump’s watch, need to demonstrate strong legal and scientific reasoning—a reality that has provided a bulwark against Trump’s assault on environmental rules.

But experts are concerned that a more conservative court could use another case to revisit Massachusetts and overturn the rule, making it much easier for Trump and future Republican presidents to gut rules and regulations. 

“You could see a wholesale rollback of their efforts to do anything to mitigate climate change, whether that’s through power plant emissions or through tailpipe emissions, so I think there are real, massive changes you would see,” Driscoll said. Such a decision could also lead to a “dismantling” of the Clean Air Act and Clean Water Act, which are intended to protect Americans from dirty air and water, he added. 

Even if Trump loses in November’s election, a Court ruling overturning Massachusetts vs. EPA would make it more difficult for a hypothetical Joe Biden administration to issue new rules to fight climate change. 

“Any massive climate action that’s passed is going to require intense complicated scientific efforts by the EPA and other agencies,” Driscoll said. “A narrow view of a conservative court would really hamstring the ability of those agencies to take a long term look at how we address climate change.”

Agencies Could Lose Power if the Court Wears Down “Deference” and Expands “Nondelegation”

There is one potential way for the climate movement to preserve the crux of Massachusetts vs. EPA, even if the Court reverses or weakens the decision: If Democrats win back control of the Senate and maintain control of the House, they could pass legislation requiring the EPA to regulate emissions. 

But that poses its own issues. The Supreme Court has long adhered to a precedent known as “deference,” which gives federal agencies flexibility to interpret and administer laws passed by Congress based on agency employees’ expertise, so long as the laws relate to the agency’s mission. But conservatives are wary of this premise. Neil Gorsuch has argued that it is the court’s role to interpret a law, not a federal agency’s, and Brett Kavanuagh has also criticized the principle of deference. If Barrett joins them, it could lead to judges interpreting technical and scientific details of a law, rather than allowing agency experts to lead the way.

A conservative court with Barrett on the bench could also expand the “nondelegation doctrine,” a principle which allows Courts to overturn laws if they are determined to give too much power to executive agencies. So if Congress passed a law requiring the EPA to regulate greenhouse gas emissions, but left it up to the agency to figure out some of the details, the Court could strike it down.

Put another way: Even if Democrats gain control of the Senate and White House, they could be forced to craft hyper-specific climate laws that cannot be interpreted as giving “too much” authority to agencies. It could take a very discrete, unambiguous law to avoid a strong legal challenge before a super-conservative court, experts say.

States and Advocates Could Losing the Ability to Sue Over Climate Issues

Massachusetts v. EPA was not only a landmark case because it ruled that the EPA could regulate greenhouse gases. It also affirmed that states had “standing,” or the right to sue the federal government over its failure to act on climate change.  

But four justices, including Chief Justice John Roberts, strongly opposed that decision. Roberts argued that it was the job of Congress and the president to address climate change, and that courts should only have jurisdiction in cases where any harm can be directly traced to a specific action.

Roberts acknowledged that global warming was “harmful to humanity at large,” but concluded that EPA oversight of greenhouse gases was unlikely to “prevent the loss of Massachusetts coastal land.” Justices Samuel Alito and Clarence Thomas joined Roberts’ dissent, and newer Justices Neil Gorsuch and Brett Kavanaugh also appear to have limited views of standing, as does Barrett.

“One could foresee a more conservative court moving to limit access to the courts to challenge government inaction on climate change,” said Michael Burger, executive director at the Sabin Center for Climate Change Law at Columbia Law School. “One could expect that Judge Barrett would take a restrictive approach to questions of standing.”

The Trump administration has attempted to roll back at least 100 environmental rules over the past four years, sparking a wave of lawsuits from states. According to data compiled by Marquette University political scientist Paul Nolette, there have been at least 130 multi-state lawsuits filed to block or reverse Trump administration rules or rollbacks, including several spurred by environmental rule changes. The states have been largely successful in preventing many of Trump’s rollbacks from going into effect. 

But if the Supreme Court decides to rein in states, individuals, and advocacy groups’ power to file suits in such cases, it would make it much more difficult to fight back against environmental rule reversals carried out by Trump or future Republican presidents. There’s also little Congress can do to counteract it, experts say, because standing is a constitutional issue in which the Supreme Court has the last word.

What Comes Next?

Things may seem grim for the climate movement, but it is not guaranteed that a 6-3 conservative court would undertake any of these efforts. There is always the possibility that the tangible consequences of climate change move members of the Court away from “possible pre-existing beliefs or biases,” according to Burger. 

“Climate harms are increasingly prevalent, while also being more extreme, impacting more people, and costing more money to respond to and recover from,” he said. “Hopefully, judges will perceive the reality we are living in and understand the ways in which the law can help our society respond, and maybe even thrive.” 

Democratic nominee Joe Biden has repeatedly emphasized the urgency of fighting climate change and has made the issue a top priority, with a plan to reach net-zero carbon emissions by 2035 while simultaneously creating millions of new jobs. 

Major climate action has broad popular support. Nearly two-thirds (65%) of Americans now say the federal government is not doing enough to reduce the effects of climate change, according to a June survey from the Pew Research Center. A similar percentage (63%) believe climate change is now directly impacting their local communities, and three in five believe climate change poses a major threat to the United States.

But any overarching climate plan will likely face legal challenges from corporations and conservatives, and could ultimately be struck down by a 6-3 conservative court. 

While everyday Americans would suffer in this scenario, already-powerful companies would emerge even stronger. 

“Corporate interests benefit time and time again when they come in front of the Supreme Court and they’ve benefited under the current balance of the court,” Driscoll said. “They would almost certainly continue to benefit from having another conservative justice who’s going to protect corporate power and profits over the needs and health of the American people.”

In the long run though, no one would benefit from a failure to act and limit the devastation of climate change, which as 2020 has proved, is already here. 

“The climate crisis is happening now,” Burger said. “Governments and corporations need to step up and lead the way to a sustainable future.”