History will remember the late, iconic Justice Ruth Bader Ginsberg for many, many things – her fearless commitment to gender equality, her delightful wit, her towering intellect, and oh, that smile – but chances are, her environmental and climate record won’t be among them.
Even so, the climate movement has a whole lot to grateful to Justice Ginsberg for. Especially for her votes in a series of landmark decisions that created a real framework for the federal government to rein in pollution and slash fossil fuel emissions (more on those cases later).
Which makes the timing of this rush to fill Justice Ginsberg’s seat with Judge Amy Coney Barrett – widely expected to be friendly to deregulation and corporate interests – a nightmare for the planet.
Wrong Time, Wrong Nomination
If confirmed, Amy Coney Barrett, now only 49 years old, would serve a lifetime appointment with decades to shape the course of American law. Those decades coincide with what scientists are shouting from the rooftops is our last chance to shift course from a path taking us careening toward climate catastrophe.
So how does she see the climate crisis?
“I’m certainly not a scientist,” she said, when asked about her views during confirmation hearings, “I have read things about it. I would not say I have firm views on it.” When later pressed on whether she believes man-made climate change is real, she refused to answer, describing it as, “a very contentious matter of public debate.”
This is where alarm bells should start going off. Loudly.
“I’m not a scientist” is exactly what fossil fuel types say when they don’t want to be on the record giving an answer they know will be unpopular. Describing change as a contentious public debate when 97 percent or more of climate scientists agree is a move straight from the climate denier playbook.
It’s not good enough – and it should disqualify Judge Barret outright.
Even setting aside the clear ducking-the-question issue, in 2020, you don’t have to be a scientist to know our climate is changing. In case you don’t have firm views, Nature is here to help, giving the kind of warning signs – with California battling the worst fire season on record (again), hurricane seasons projected to keep getting more intense, and seas are rising up to swallow South Florida – that only a corpse could miss.
It’s worth repeating that there is still a roughly 10-year window of time to cut emissions in half and get serious about reaching net-zero by 2050 if we want to avoid the worst of climate change. But it’s the last window we’ll get.
In this precious decade, with a Judge Barret on the Supreme Court, we can expect fossil fuel interests and corporate polluters to file one case after another angling to reach the Court and repeal key precedents (more on that below). And with a 6-3 pro-corporate/anti-regulation majority, it’s no stretch of the imagination that the Court simply declines to take appeals to the 100 separate rollbacks of key environmental and climate policies the current administration has already achieved or is working on.
We’re speculating, to be sure, but based on the judge’s own words and history, we can anticipate the fossil fuel industry doing everything it can to use the Court to kill pro-climate policy by 100 lawsuits. All anticipating a friendly ear. And while it does, the clock keeps ticking down to the moment when it is simply too late for the planet.
Little Respect for Precedent
The other huge – let’s say, planet-sized – reason for concern about Judge Barret’s nomination has to do with her willingness to overturn past precedents.
Writing in a 2013 law review article, Judge Barret argued that a Supreme Court justice should “enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
So what’s at stake here? Precedents on the Affordable Care Act that provide healthcare to millions, for one. And for the climate and our environment, several stand out that currently give the federal government the power to regulate greenhouse gas emissions and shut down dirty power plants.
These were precedents the late Justice Ginsberg was instrumental in deciding. If Judge Barrett is confirmed in taking Ginsberg’s seat, she could be instrumental in overturning them.
Fighting The Climate Crisis
Massachusetts v. EPA delivered perhaps the most critical Supreme Court decision for the climate in US history. In this case, the court decided that EPA can regulate carbon dioxide as an air pollutant as defined by the Clean Air Act and that EPA could not delay regulatory action on CO2 because of its policy priorities as defined by the administration at the time. Justice Ginsburg sided with the majority in this case which was instrumental in the Obama administration raising vehicle emissions standards.
In 2011, Justice Ginsburg authored the unanimous opinion in American Electric Power Company v. Connecticut, which stripped states and private companies of the authority to sue power companies for their contributions to the climate crisis in federal court. Though this decision was on its face anti-environment, Ginsburg’s opinion reiterated EPA’s authority to regulate greenhouse gases and paved the way for the Clean Power Plan. It also, in effect, empowered state attorneys general to sue polluters in state court.
In 2014, Justice Ginsburg wrote the majority opinion in EME Homer City Generation v. EPA, which upheld EPA’s cross-state air pollution rule (Transport Rule) allowing the agency to regulate coal plants where their emissions blew across state lines and affected air quality in downwind states. This ruling is credited with shutting down some of the US’ dirtiest power plants.
Throughout her time on the Supreme Court, Justice Ginsburg generally favored reining in polluters, particularly in cases of water pollution. She joined two key dissents on landmark Clean Water Act cases: Solid Waste Agency of North Cook County v. Army Corps of Engineers and Rapanos v. United States.
In both dissenting opinions, the minority argued that the Clean Water Act expanded to isolated ponds, wetlands, and virtually any water feature. Additionally, in April 2020, Justice Ginsburg joined a 6–3 majority that said pollution that travels into waterways via groundwater can be subject to the Clean Water Act. Though the standard set in this decision was not as expansive as environmental groups had hoped, it was far less restrictive than the position argued for by the County of Maui and the Trump Administration.
The Bottom Line
It comes down to this: We can’t afford a rushed confirmation of a judge unwilling to even acknowledge the settled science on one of the single greatest threats to humanity today. Much less a judge with a stated willingness to overturn precedents that protect our health and our climate.
With hearings still underway, you can take action to oppose this rushed confirmation. Let your senators know you oppose any confirmation until after the presidential election is settled and Inauguration Day in 2021.
The country can’t afford this rushed confirmation. Neither can our planet.
Before You Go
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