Barrett and Beyond: the Green Case for
By Keith Plumyers, Sarah
Lamdan & Christopher Sellers
The death of Supreme Court
Justice Ruth Bader Ginsburg and
President Trump’s nomination of
Amy Coney Barrett as her successor
have raised anxieties about a
reconfigured court’s impact on
our environmental laws. Barrett’s
refusal to answer questions
on climate change during
her confirmation hearings has
only increased worries about the
future of climate legislation and
environmental protection if she
joins the court.
But Ginsburg herself had a
more “complex” history on key
environmental cases than her
green reputation suggests. She
joined a bare majority in the
2007 case enabling regulation
of greenhouse gas emissions
under the Clean Air Act, but
also authored a unanimous opinion
in 2011 preventing lawsuits
against private power companies
for their greenhouse gases.
Since the 1970s, the Supreme
Court has often proven an
unsteady ally or antagonist in
environmental protection, even
as lower courts supplied many
environmental victories. A Barrett
confirmation will only add
to the Court’s already blunted
ability to contend with environmental
realities. The best
remedies lie beyond the Barrett
battle, in Court reform through
term-limits or expansion, as well
as new laws that can more effectively
ensure meaningful climate
action.
Like in so many other areas
of law, conservative judges have
steadily stripped away environmental
regulation not so much
Supreme Court Reform
by blasting apart environmental
policy from the top, more from a
gradual erosion of its scope and
impact. They’ve done so quietly,
through court decisions claiming
to “limit government intrusion”
or overreach, to respect
the separation of powers, or to
“eliminate red tape.”
That was Justice Antonin Scalia’s
playbook: leaning on technical
issues like standing (the right
to seek redress in court) and the
precise nature of an environmental
harm to shift the questions at
stake from those of fact to those
of process. Barrett’s limited environmental
Contributing Writers: Azad Ali, Tangerine Clarke,
George Alleyne, Nelson King,
Vinette K. Pryce, Bert Wilkinson
GENERAL INFORMATION (718) 260-2500
Caribbean L 10 ife, October 23-29, 2020
jurisprudence suggests
that she will do likewise.
Now, with so many Trump
Administration actions now
winding their way through the
federal courts, a still more proindustry
and de-regulatory Court
could well turn less quiet and
stealthy, cementing far-reaching
curtailments of the scope and
force of our environmental laws.
The Trump administration’s
proposal that National Environmental
Protection Act (NEPA)
be “modernized” offers a case in
point. In early 2020, the Trump
administration’s Council on
Environmental Quality (CEQ)
officially curbed NEPA requirements
to exclude cumulative or
indirect environmental impacts
of government projects as well
as impacts that are “geographically
remote.” Now, when the
government builds a highway,
it need not assess the potential
environmental harm caused
by increased traffic and roadside
developments. Over twenty
environmental groups and
many states have already sued
over the new NEPA regulations,
and the Supreme Court may
well be tasked with deciding this
case.
Should it be asked to do so the
Court’s decision will rest on the
decades of Court decisions that
have already limited NEPA’s role
to merely a “procedural hurdle,”
without regard for actual environmental
results, abandoning
the law’s original transformative
vision of, as Adam Sowards
argues, a “productive harmony”
between humans and the natural
environment.
That corrosion was long in
coming, actually starting in
1989, when the Supreme Court
unanimously decided that NEPA
is merely procedural. In 2010, a
majority then agreed with Justice
Antonin Scalia that agencies
could skip NEPA procedures
when environmentally risky
projects will only cause “possible”
and not “likely” irreparable
environmental harm. Justice
John Paul Stevens, author of
the 1989 decision, now dissented,
insisting that courts should
consider scientific evidence and
not solely administrative process.
But the die was already
cast: accumulating decisions
like these had chipped away at
environmental governance, slyly
constricting environmental policies
without overturning the
law. The door had opened for an
administration like Trump’s to
come along, to seek far-reaching
dismantlement of bedrock environmental
laws.
It is tempting to see a shift
from a 5-4 to a 6-3 conservative
majority on the Court as an existential
threat to environmental
protection, but in truth, many
of the court’s legal impediments
to meaningful environmental
action have been building for
decades. Environmentalists’
worries about 48 year-old nominee
Barrett are indeed justified;
yet her arrival on the nation’s
highest bench will likely only
reinforce the Court’s growing
inclination to treat environmental
matters as merely administrative
and procedural, without
regard for the science and substance
of what is at stake.
Addressing the already present
harms and looming damage
from climate change requires
more than just contesting one
appointment. It demands hard,
science-based, and democratic
discussions about what a “productive
harmony” between people
and nature might mean and
when environmental protection
should supersede considerations
of economic growth. Starting
with the coming election, we
need to elect leaders willing to
reform the Supreme Court as an
institution, also to broach these
difficult questions and craft new
laws that provide answers.
————————–
Keith Pluymers is Assistant
Professor of History at Illinois
State University. Sarah Lamdan
is a Professor of Law at City
University of New York School
of Law. Christopher Sellers (@
ChrisCSellers) is a professor of
History at Stony Brook University.
All authors are members
of the Environmental Data and
Governance Initiative.
OP-EDS
LETTERS TO THE EDITOR are welcome from all readers. They should be addressed care of this newspaper to the Editor,
Caribbean-Life Publications, 1 MetroTech Center North, Brooklyn, New York 11201, or sent via e-mail to caribbeanlife@
schnepsmedia.com. All letters, including those submitted via e-mail, MUST be signed and the individual’s verifiable address
and telephone number included. Note that the address and telephone number will NOT be published and the name will
be published or withheld on request. No unsigned letters can be accepted for publication. The editor reserves the right to
edit all submissions.
Founded 1990 • Published by Brooklyn Courier Life LLC
Corporate Headquarters: One Metrotech Center North, Suite 1001, Brooklyn, NY 11201
PRESIDENT & PUBLISHER: Victoria Schneps-Yunis
CEO & CO-PUBLISHER: Joshua Schneps
ASSOCIATE PUBLISHER: Ralph D’Onofrio
EDITOR EMERITUS: Kenton Kirby
ASSOCIATE EDITOR: Kevin Williams
This newspaper is not responsible for typographical errors in ads beyond the cost of the space occupied
by the error. All rights reserved. Copyright© 2020 by Brooklyn Courier Life LLC. Caribbean
Life is protected by Federal copyright law. Each issue of Caribbean Life is registered with the Library
of Congress, Washington, D.C. The Caribbean Life, its advertisements, articles and photographs, may
not be reproduced, either in whole or part, without permission in writing from the publisher except
brief portions for purposes of review or commentary consistent with the law.
The exterior of the Supreme Court building in Washington, D.C. REUTERS / Brendan McDermid,
File
/schnepsmedia.com
