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Environmental action, laws may face new hurdles on high court

By Benjamin J. Hulac, CQ-Roll Call on

Published in Political News

WASHINGTON - A conservative supermajority on the Supreme Court could deal a crippling blow to environmental laws on the books, water down climate regulations tied up in court and make it harder to curb greenhouse gas emissions in the U.S., according to environmental law scholars and advocates.

A 6-3 conservative majority may also dissuade an administration under the leadership of Joe Biden, the Democratic candidate for president, from pursuing aggressive climate rules, experts said.

President Donald Trump's nominee to replace the late Justice Ruth Bader Ginsburg, who was a reliable supporter of stringent environmental oversight, Seventh Circuit Judge Amy Coney Barrett, does not have a deep judicial record on any topic, including environmental issues. The Senate confirmed her to the circuit court 55-43 in October 2017.

Barrett clerked for former conservative justice Antonin Scalia and holds a narrow view on who has legal standing to file federal lawsuits than more liberal colleagues.

Two majority opinions Barrett wrote on the Seventh Circuit, which covers Illinois, Indiana and Wisconsin, hint at her views on water law and legal standing. In June 2018, she signed an opinion that reversed an earlier ruling that found 13 acres of wetlands in Illinois fell under Clean Water Act protections. And in August she held, writing the majority opinion, that a citizen group challenging the location of the planned Obama Presidential Center in Chicago did not have legal standing. Experts pointed to a landmark case in 2000 that established a broad view of environmental groups' ability to sue.

Writing that year for a 7-2 majority, Ginsburg argued that it took fines - not just the possibility of fines - to discourage polluters from breaking the law.

 

"A would-be polluter may or may not be dissuaded by the existence of a remedy on the books, but a defendant once hit in its pocketbook will surely think twice before polluting again," Ginsburg wrote for a majority in the case Friends of the Earth v. Laidlaw, which centered on a South Carolina waste company that operated without proper water permits.

"When she wrote for a 7-2 majority in 2000, we had a very different court," Ryke Longest, a Duke University law professor, said of that ruling, adding that justices Clarence Thomas and Antonin Scalia dissented. Two decades later, the views of the two-person minority could become the majority stance.

Legal experts said the Supreme Court ruling that gave EPA the authority to regulate carbon emissions is also at risk under a court with Barrett.

When the court ruled 5-4 in 2007 on Massachusetts v. EPA, widely considered the most important climate lawsuit in American history, it found carbon dioxide, the most common greenhouse gas, is an air pollutant the agency has authority to regulate. The ruling laid the groundwork for a series of climate regulations during the Obama administration.

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