How would a Justice Amy Coney Barrett rule on the environment?

Judge Amy Coney Barrett, President Donald Trump’s latest nominee to the Supreme Court, is an acolyte of the late conservative Supreme Court Justice Antonin Scalia. At age 48, she would become the youngest justice on the court. Like her mentor, Barrett seems likely to rule against important environmental legislation, which could hinder US efforts to mitigate climate change.

During her confirmation hearings, Barrett raised alarm among people hoping for support from the court on climate change legislation when she fell back on the common Republican formulation, “I’m certainly not a scientist,” to deflect questions about its causes.

Because Judge Barrett has served on the 7th Circuit Court of Appeals for just three years, her academic writing may be the only way to predict how she might rule on major environmental cases due to come before the court, says Patrick Parenteau, a professor of environmental law at Vermont Law School.

“[Barrett] has not actually written any majority opinions dealing with environmental law, but she is very outspoken on matters of constitutional interpretation and, particularly, statutory interpretation.”

“She was a law professor for many years at Notre Dame law school,” Parenteau explains. “She has not actually written any majority opinions dealing with environmental law, but she is very outspoken on matters of constitutional interpretation and, particularly, statutory interpretation.”

Related: What a Justice Kavanaugh could mean for climate change

Barrett calls herself a textualist in the mold of Justice Scalia. Textualists, Parenteau explains, “don’t so much look to the purposes of the laws that Congress enacts — for example, the Clean Air Act, the Clean Water Act, the Endangered Species Act. Most of these laws have very strong environmental objectives and purposes. And sometimes the words of the statute don’t fully reflect the policies and the purposes that drove the law to begin with. And that’s where the words of a statute become critical.”

A textualist like Judge Barrett would not necessarily pay much attention to the statement of purpose or policy behind the creation of a statute, Parenteau says. Instead, “she would zero in on the narrowest definition of the word[s] in question.”

This method of statutory interpretation could limit federal power to protect natural resources because many statutes are purposely written broadly, leaving the specific rule-making in the hands of a particular federal agency, such as the EPA.

Most environmental laws in the US are based on the Constitution’s Commerce Clause, Parenteau explains. Unlike states, the US Congress doesn’t have broad authority to protect public health, so it has to ground the Clean Air Act, the Clean Water Act and other environmental laws in their impact on interstate commerce.

This “comes into play big-time” with the Clean Water Act, for example, Parenteau explains. “When Congress passed the Clean Water Act, they invented a term: ‘waters of the United States,’” Parenteau explains. “They didn’t define it; they didn’t know what it meant. That’s clear from the legislative history. It was kind of thrown in at the last minute in the conference report.”

“A judge like Judge Barrett, who’s a self-professed originalist, takes a fairly narrow view of Congress’ authority under provisions like the Commerce Clause.”

This raises questions about whether or not Congress can “go to the limits of the Commerce Clause” to protect, for example, the headwaters of watersheds, small rivers and streams, and wetlands that “make up the full aquatic ecosystem,” Parenteau says. “A judge like Judge Barrett, who’s a self-professed originalist, takes a fairly narrow view of Congress’ authority under provisions like the Commerce Clause.”

A line of cases dealing with climate change is working its way through the lower courts and will likely end up at the Supreme Court soon. These cases are “going to be most at risk,” when Barrett is added to the court, Parenteau believes.

The case involving President Obama’s Clean Power Plan will be one of the first. The Trump administration repealed the Clean Power Plan and replaced it with the Affordable Clean Energy Act, which Parenteau says “doesn’t do anything at all to deal with climate change.”

That case is now being argued in the DC Circuit Court of Appeals and it’s almost certain to go to the Supreme Court. The central question in the case concerns the power of the EPA to use the Clean Air Act to limit greenhouse gas emissions from power plants and, by extension, mitigate climate change’s impact on public health and safety.

Related: How might a Justice Gorsuch rule on environmental cases before the Supreme Court?

Right behind this case is a lawsuit over automobile emissions and fuel economy standards. The Trump administration rolled back Obama administration rules that were pushing the auto industry toward achieving 50-miles-per-gallon and manufacturing more clean vehicles, such as electrics and hybrids by 2025.

This case, too, will end up at the Supreme Court and will again address questions about the scope of EPA’s authority under the Clean Air Act, Parenteau says. The case also deals with whether California, which has historically been given extra authority to deal with air pollution, can continue to do so. The Trump administration revoked the state’s authority to set its own standards. The Supreme Court will have to rule on whether to uphold or to overturn this.

The third big case involves the EPA’s authority to regulate methane leaks from oil and gas wells across the country. Methane is a more potent greenhouse gas than carbon dioxide, though it doesn’t remain in the atmosphere for quite as long.

“Just looking at that one issue of the Clean Air Act and climate change, there are three cases lined up, all of which could potentially get to the Supreme Court in front of this new 6-3, almost ironclad, conservative majority of the court.”

“So, just looking at that one issue of the Clean Air Act and climate change, there are three cases lined up, all of which could potentially get to the Supreme Court in front of this new 6-3, almost ironclad, conservative majority of the court,” Parenteau says. The six majority justices are all likely to take a narrow view of EPA’s authority, based on a strict interpretation of the statute’s text.

Parenteau believes this type of interpretation is misguided.

“When you look at environmental law, it’s always [reactive],” he explains. “We didn’t pass the Clean Water Act until we had rivers catching fire. We didn’t pass the Clean Air Act until people were literally choking in the smog of Los Angeles. Congress is often reactive to these problems and when they pass laws, they can’t envision all that has to be done in order to deal with them. That’s why they leave it to agencies’ discretion to let laws sort of evolve and adapt as time goes by.”

“But a doctrine that says, ‘We’re going to stick to the original intent and words of the statute, we’re not going to try to take into account these broader goals and purposes’ — that cuts directly against what Congress is trying to do with environmental law, which is oftentimes remedial and long-term in nature,” Parenteau points out.

Barrett has even acknowledged this tension. “She has said judges face a difficult job of balancing their duty to the Constitution, to say what the law is, but also to be respectful of the fact that legislators sometimes have to enact laws that are very general in their scope and that don’t have all the specificity that you might want,” he points out.

“So, I think she’s an honest, although conservative, judge,” he concludes. “I would not discount the [possibility] that she could evolve and grow as a justice, but clearly she’s going to start from a place that means environmental law, in particular, is going to have a very hard time. You have to understand an awful lot about the science and…the technical aspects of environmental law. You really have to spend time trying to understand what environmental law is trying to accomplish in order to fairly interpret it.”

This article is based on an interview by Steve Curwood that aired on Living on Earth from PRX.