The Supreme Court’s Environmental Legacy Was Tarnished Even Before Barrett

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 U.S. environmental laws. During her confirmation hearing, Barrett’s refusal to answer questions on climate change only increased worries about the future of climate legislation and environmental protection if she joins the court.

Her predecessor’s “green” legacy, however, is far from perfect. In a 2007 case, Ginsburg joined a bare majority enabling the regulation of greenhouse gas emissions under the Clean Air Act. But she also authored a unanimous opinion in 2011 preventing lawsuits against private power companies for their greenhouse gas emissions.

More broadly, 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. Barrett’s record in environmental cases suggests that her joining the Court will only add to its already blunted ability to contend with environmental realities.

The Supreme Court has often proven an unsteady ally or antagonist in environmental protection.

Like in so many other areas of law, conservative judges have steadily stripped away environmental regulation, not so much by blasting environmental policy from the top but instead by gradually eroding its scope and impact. They’ve done so quietly, through court decisions asking whether the EPA “acted reasonably” in its efforts to regulate tailpipe emissions or arguing that “reasonable regulation” requires a consideration of cost. Significant limitations on environmental protection get reframed as “efforts” to ensure agencies behave reasonably.

That was Justice Antonin Scalia’s playbook: he shifted the Court’s focus from environmental impacts to discussions of administrative procedure, property rights, or standing (the right to seek redress for a harm in court). Justice Scalia’s rare concern with issues of impact appeared most prominently in Michigan et al v. EPA et al (2014), in which he argued that the EPA should have balanced the financial costs involved in regulating power plants against the environmental consequences in their decision-making. Barrett’s limited environmental jurisprudence — and her tutelage under Scalia as his clerk— suggests that she will do the same.

Current cases winding their way through the federal courts may provide the perfect opportunity for Barrett and the Supreme Court to curtail environmental laws. Suits over the Trump administration’s proposal that the National Environmental Protection Act (NEPA) be “modernized” offer a case in point. NEPA, signed into law in 1970, sought to find a “productive harmony” between humans and nature that would govern federal projects. In practice, the law came to require that federal agencies conduct an environmental and health investigation on proposed projects. NEPA required that the agency consult scientific experts, publish an Environmental Impact Statement, and allow the public to weigh in before beginning an action.

In early 2020, the Trump administration’s Council on Environmental Quality officially curbed NEPA’s environmental impact reporting requirements and allowed agencies to treat distance from population centers as an exemption to protection requirements. As a result, when the government builds a highway, it no longer needs to 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 weigh in on NEPA, the Court’s decision follow decades of Court decisions that have already limited NEPA’s role to merely a “procedural hurdle.” In 1989, the Supreme Court unanimously decided that NEPA longer required agencies to pursue projects that best achieved “productive harmony” with the environment; it instead simply mandated that agencies demonstrate they had thoroughly considered options and impacts. In 2010, a majority concurred with Justice Samuel Alito that agencies could skip NEPA procedures when environmentally risky projects will only cause “possible” and not “likely” irreparable environmental harm — a decision that limited lower courts’ ability to temporarily halt potentially damaging projects. Justice John Paul Stevens, who authored the 1989 decision, 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 Supreme Court reduced NEPA to a procedural hurdle, forced Clean Air Act regulation to balance environmental protection against cost considerations, and limited where the Clean Water Act can be applied  — all decisions that opened the door for the Trump administration to dismantle 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 the 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 when environmental protection should supersede considerations of economic growth and what a “productive harmony” between people and nature might mean. Starting with the coming election, we need to elect leaders willing to broach these difficult questions by crafting new laws and entertaining reforms to the Supreme Court. Barrett’s nomination is just the beginning.

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.