Barrett on the Bench Will be a Disaster for Environmental Security

“The originalist philosophy Barrett espouses would not provide the holistic perspective needed to answer the preamble’s call for the provision of common defense and promotion of general welfare.”

By Gretta Elizondo

President Donald Trump’s Supreme Court nominee, Judge Amy Coney Barrett, was confirmed by the U.S. Senate on October 26, elevating her to the highest court in the United States just over a week before the U.S. presidential election. Justice Barrett’s ascension to the Supreme Court will probably launch a new era of an originalist, conservative interpretation to the laws of the United States, which could imperil the fate of policies and measures that directly affect environmental security and, by extension, human and national security.

Barrett on Climate Change

Barrett deflected virtually all questions regarding climate change during her confirmation hearings. She claimed that precedent prevents her from voicing her opinions on climate change as related cases could come before the court in the future when she’ll have to make a ruling. Barrett touted climate change as a “politically controversial” topic implying that the science is not yet settled. She also said that she is “certainly not a scientist” and therefore does not “have firm views on it.” Yet, even as prominent climatologists, like Michael E. Mann, argue “there’s about as much scientific consensus about human-caused climate change as there is about gravity,” Barrett could not acknowledge the scientific reality of it. Furthermore, her focus on the political implications of her responses reveal that she is more concerned about optics than fact.

Barrett’s comments on climate change introduce several key questions about the role of the Supreme Court  in rulings and cases that could govern the U.S. approach to climate change and environmental policy. First, what are the legal issues around climate and environmental policy that could come before the court? Second, what are the direct implications for climate and environmental security of a solidly conservative slant to the court? Lastly, and more generally, what is the role of non-scientists in key positions of power in talking about climate change?

Legal Issues Around Climate Change and Environmental Policy

Supreme Court rulings have major impacts on environmental policy in the U.S., even in recent years. In 2020, there have been three cases ruled on by the Supreme Court that affect the environment and the role of industry in shaping environmental health. These include activities affecting the Clean Water Act, pipelines in national parks, and the ability of landowners to seek compensation for polluted land. A recent Supreme Court decision ruled that industries must obtain permits to discharge pollutants to navigable waters indirectly through groundwater or soil. Had this ruling not passed, companies would be able to discharge potentially toxic pollutants into groundwater or soil where it would make its way into lakes, rivers, and oceans. 

However, the landmark 2007 Massachusetts v EPA case is arguably the most consequential to the issue of climate change in the last two decades. The Supreme Court ruled that the U.S. Environmental Protection Agency (EPA) is responsible for the regulation of the emission of greenhouse gases under the Clean Air Act, which states that air pollutants that can “be anticipated to endanger public health or welfare” are the responsibility of Congress to regulate. The Supreme Court ruling recognized climate change as a danger to public health as well as human-emitted greenhouse gases as the major culprit but passed on a slim 5-4 margin. Had a climate-denying justice been on the bench as the deciding vote, the outcome could have prevented the EPA from regulating greenhouse gas emissions as air pollutants. 

Beyond 2020, cases around pollutants and greenhouse gas emissions will almost certainly reappear before the court. Pipelines, such as Keystone XL, have been a particular source of contention in the U.S. in recent years, with petroleum companies warring with environmental groups and First Nations. Pipelines have been the focus of supreme court hearings both at the state and federal level. It is likely that given the continuing problems with pipelines that they will return to the be at the center of the legal stage. With a conservative-stacked Supreme Court, high-polluting companies and industries now have a newfound opportunity to roll-back decades of progress for environmental protection.

Given the U.S.’ role in the international system, it’s also important to recognize how the U.S. approaches climate change domestically will affect how other countries approach it on the world stage. For example, as more people become at-risk for forced displacement due to climate-induced sea-level rise, the determination of what constitutes a “refugee” or other protective status for migrants under U.S. law. Additionally, the Supreme Court could be called to adjudicate cases related to U.S. industrial and environmental obligations under future international accords — especially if the U.S. reverses its withdrawal from the Paris Climate Agreement.

The Consequence of Originalism on the Court

With regard toward the environment, the originalist legal philosophy Barrett ascribes to is fundamentally flawed. While originalists interpret initial environmental statutes as ways to protect only economic well-being, other legal experts see the primary intention of those laws to be for the environment itself. Economic growth comes second. 

An economic view of the environment is an inappropriate way to look at the value of environmental protection. This legal interpretation does not account for the costs and benefits that cannot be easily quantified. The Endangered Species Act, for example, is premised on the idea that environmental protection itself is valuable. It’s not just for the sake of economic growth. 

Meanwhile, a harmed environment is currently threatening economic well-being and national security both domestically and abroad. Originalist interpretation, however, dismisses the step-wise linkages between the environment and economy as well as the general security and welfare of the populace. Measures taken to protect the environment often translate to better economic conditions. For instance, the preservation of wetlands in Louisiana preserves natural buffers to hurricanes that have battered the state in a near record-setting season. In sum, the originalist philosophy Barrett espouses would not provide the holistic perspective needed to answer the preamble’s call for the provision of common defense and promotion of general welfare, nor an inherently accurate one.

Who Should Be Deciding the Laws Related to Science?

The imminent conservative-leaning court and Barrett’s comments related to climate change also raise the question of what the role is for non-scientists in the determination of rules and laws about science topics. Barrett said that she is not a scientist, and therefore does not have “firm views” on climate change. However, she does not just have to take the word of scientists on this matter. National security, medical, insurance, social justice, and economic sectors, not to mention the head of the Catholic Church have long recognized the economic, security, moral, and stability implications of climatic and environmental change. 

As Barrett said it herself, the Supreme Court will almost certainly have to make decisions related to climate change in coming years. While most policymakers and Supreme Court justices do not have science backgrounds, they are entrusted to make decisions about these issues. However, this can only be accomplished effectively if they are not governed by their beliefs but rather based on expert information and facts.

Decisions made by the U.S. Supreme Court affect not only current policy but continue to impact society long after the justices’ leave the bench. It is for these reasons that the next justice appointed to the bench should possess values reflective of what the U.S. truly wants to be and not just be selected to be an immediate political pawn. The majority of the U.S. population understands that climate change is real and is human-caused. Decision-makers have to respect this fact, regardless of what they believe privately.

Gretta Elizondo is an Environmental Security Analyst with the Center for Development and Strategy (@ThinkCDS). Based in Calgary, Alberta, she holds an M.Sc. in Environmental Geochemistry and Geomicrobiology from the University of Manchester in the U.K. and a B.Sc. in Environmental Science and Geology from the University of Calgary. The Center for Development and Strategy is a non-partisan 501(c)(3) think tank devoted to the research and discussion of the nexus between global development, sustainability, and security in an era of unprecedented change.