Long after Trump is a footnote in history, his impact on the environment will still be felt. For progressives and moderates alike, the horrors of a Trump presidency are cloaked in judicial robes.
Trump, in consort with the Senate Republicans, will have appointed nearly one in four federal judges and most probably three of nine justices on the US Supreme Court by the end of his first term.
Should Amy Coney Barrett be confirmed to fill the seat left vacant by the passing of Justice Ruth Bader Ginsburg, the US Supreme Court will take on a decidedly conservative bent. With her confirmation, federal courts will become a vastly different venue in which to debate environmental regulation.
Unlike Justice Kavanaugh, Coney Barrett appears never to have decided nor written about any environmental law cases. Therefore, how she would rule on climate-related matters as a Supreme Court justice must be inferred from her various legal writings and lectures.
Coney Barret, like Justices Gorsuch and Kavanaugh, is an originalist and textualist in the mold of Justice Antonin Scalia—for whom she clerked. As a textualist, she will rely almost exclusively on the literal or plain meaning of words. Textualists choose not to read into laws things that are not there and do not consider supporting or supplementary sources, such as modern social policy or legislative history, when interpreting a statute.
It may help to think of the difference between a textualist and their less literal counterparts on the bench in this way. If something walks like a duck and talks like a duck, a textualist will not jump to the conclusion it is a duck. Whereas more liberal jurists will take its "duckness" into consideration when making a decision.
As to how an originalist approaches a case, I'll let Justice Scalia speak for himself:
The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted. (emphasis added)
The remaking of the high court into a more conservative deliberative body raises critical questions for climate defenders. Until now, courtrooms have been the preferred venues in which to fight against the Trump administration's efforts to roll back over 100 climate-related regulations and laws. More accurately, courts are preferred by default because of the comp-osition of Congress and decades of gridlock.
Should Trump win a second term, his administration will likely be much more successful in its deregulation of the environment. Why this is, is reasonably straightforward.
The Trump administration has been remarkably bad at defending its actions in federal courts—from trial courts to the US Supreme Court. By most tallies, the administration has won less than 20 percent of its cases. On average, the G.W. Bush and Obama administrations each prevailed in about 70 percent of its cases.
The problem, from an environmental perspective, is that many of the decisions against the Trump administration didn't take issue with its power to roll back or revise a regulation. The fatal flaw was quite often its failure to follow well-established procedural rules[i], e.g., public input.
The Trump administration has tended to do shoddy science work, particularly in putting together the environmental assessment and impact statements required by the National Environmental Protect Act (NEPA). A second Trump administration will undoubtedly attempt to cure earlier administrative and substantive deficiencies. Many of which could easily be done given another four years.
In all, the administration has officially reversed or revoked nearly 70 environmental rules and regulations[ii]. More than 30 additional rollbacks are still in progress[iii]. (See Table 1)
The addition of a sixth conservative justice will make it more difficult for environmental advo-cates to challenge the Trump administration's deregulation actions. Areas of the law that are likely to be affected with a solidly conservative high court majority are standing to sue, deferring to agency interpretations of laws, and adhering to precedents.
The right to sue, i.e., standing, is the first hurdle any plaintiff in a lawsuit must get over. Three criteria must be met before a plaintiff has standing to sue. The plaintiff must have suffered actual harm. The injury must be reasonably connected to the defendant's action. The court must have the power to redress the harm.
The youthful plaintiffs in the Juliana case have been in court for five years, and their standing to sue is still being debated. Although the judges have been sympathetic to the Juliana plaintiffs and don't doubt the conclusions of mainstream climate scientists, the courts aren't sure of what they can do to redress the harms—believing it is a matter for the legislative and executive branches.
Friends of the Earth v. Laidlaw Environmental presented a question about the citizen-suit provisions of the Clean Water Act. The majority opinion written by Justice Ginsburg, made it easier for environmental groups to move against industrial plaintiffs. Justice Scalia was one of two dissenting votes. He believed the harms claimed were vague and accused the majority of marrying a private wrong with a public remedy in a union that violates traditional principles of federal standing–thereby permitting law enforcement to be placed in the hands of private individuals. (emphasis added)\
There’s every reason to believe that the with six conservative justices plaintiffs will be held to a stricter standard and the courts to less expansive interpretations. Standing is not the only area of law that might come under the textualist microscope in the future.
A 1984 case, Chevron US v. Natural Resources Defense Council, established what has become known as the Chevron deference (or doctrine). The doctrine dictates that courts should give special consideration, i.e., defer, to agencies' interpretations of the statutes they administer.[i] It is usually applied when Congress confers an agency with the general authority to make rules having the force of law.
Because Chevron is a judicially created doctrine resting in large part on a presumption about legislative intent, textualists often take a dim view of it. Again, textualists are loathed to guess what Congress had in mind when they enacted the legislation and generally do not consider legislative histories.
Chevron was key to the Massachusetts v. EPA decision that obligated the Agency to regulate greenhouse gases if it found them harmful to health. The doctrine, however, cuts two ways. The Obama administration benefitted from the doctrine when regulating the environment.
The Trump administration could also benefit from the deference in deregulating the environment—assuming its actions were evidence-based. Justice Scalia became more critical of the doctrine over time and more willing to believe the Supreme Court had the power to make up its own mind about Congressional acts. A point of view that may be embraced by a conserv-ative high court.
As I've written before, the stare decisis principle is firmly embedded in American jurisprudence. The principle means that judges and justices are to rely as much as possible on established precedents. It is an area that gives pause to many rights activists. The case of Roe v. Wade, giving a woman the right to choose to have an abortion without government interference, has become a rallying cry of both conservatives and liberals.
A 2013 Texas Law Review article by Coney Barrett has become a flashpoint for rights activists and comforting for conservatives opposed to abortion and the acts of what they believe have been activist courts. In the article, she states:
The question remains whether overruling precedent affects the Court's actual legitimacy. Does the Court act lawlessly—or at least questionably—when it overrules precedent? I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it. (emphasis added)
Throughout her confirmation process, Coney Barrett will be asked her position on Roe and legal precedence in general. Although it is hard not to read the words she's written as willing to overlook precedents, it would be unfair to say she has no regard for what went before—or for that matter, what the public thinks of the Supreme Court.
In the same law review article, Coney Barrett talks about certiorari, i.e., the Supreme Court's willingness to hear a case. She writes:
In contrast to the lower federal courts, which must take all comers, discretionary jurisdiction permits the [Supreme} Court to pick and choose the questions it hears. One way in which the Court maintains stability in the case law is by not granting certiorari to revisit well-settled questions. Indeed, even if an individual justice thinks some well-settled case wrongly decided…the certiorari process permits her to avoid confronting the question [of] whether it should be overruled. (emphasis added)
Several things should be noted. A single justice does not make the certiorari decision--at least four of the nine must agree. Coney Barrett has expressed concern in her writings about the reputation of the high court in the eyes of the public. It is a concern shared--strongly shared—by Chief Justice Roberts.
The Supreme Court has suffered damage to its reputation because of Donald J. Trump. His trashing of any court that doesn't agree with him has cast all courts in an unfortunate light.
Trump's recent bragging on the number of judges and justices he's appointed and how the Senate has rushed through judicial nominations has politicized the one branch of which politics should not be a part. Adding fuel to the fire are Trump’s predictions that the election will be decided by the Supreme Court rather than at the ballot box and his using it as a rationalization for Coney Barrett’s rapid confirmation.
Had Senate Republicans stuck to their 2016 precedent of not confirming a Supreme Court nominee in an election year, the nation would be much more settled politically. Assuming that the Democrats take the White House and the Senate, Ginsburg's replacement would be more reflective of Justice Ginsburg’s judicial philosophy.
Perhaps most importantly, the Supreme Court would be better balanced with five conservatives and four liberal. It is a situation that would have made the Chief Justice the swing vote—rather than a swing vote. It is a distinction that should not be overlooked.
There is no getting around that the US Supreme Court will have a decidedly conservative bent for years—decades—to come should the number of justices remain at nine. It is not to say that all hope for a sustainable environment is now lost.
Going forward, climate activists must focus on the political branches of government. In turn, lawmakers must write laws that are much clearer about the role of executive agencies, the courts, and citizens. The standing issue, for example, can be taken out of the hands of the courts.
Lawmakers can pass legislation giving citizens the right to sue the government for climate-related injuries—including robbing the young of a sustainable future. A recent law passed by the Vermont General Assembly has taken a step in that direction. H. 688 establishes emission reduction targets and grants citizens the right to sue the Secretary of Natural Resources upon the failure of the Secretary to adopt or update rules pursuant to the deadlines stated in the Act.
A Democratic sweep of Congress and the White House will result in the rollback of Trump's climate legacy in much the same way he has erased Obama's. Moreover, it is likely to result in climate legislation like the Clean Energy and Jobs Innovation Act recently passed by the House.
Unfortunately for the environment, many of these actions will be taken to court by conservatives, fossil fuel interests, and red states—just as they did during the Obama administration. It will repeat the same circular pattern that has been occurring for decades and is responsible for the relatively little progress the nation has made in addressing Earth's warming.
The courts have never been the ideal venue in which to save the environment. Even the most liberal court is constrained in what it can do.
In the final analysis, it is up to the political branches to do what's right and what's necessary and to voters to see that they do.
[i] The Administrative Procedures Act (APA).
[ii] Based on a New York Times analysis and research from Harvard Law School, Columbia Law School and other sources,
[iii] For brief summaries of the various rules click here.
[iv] Congressional Research Service, Chevron Deference: A Primer
Lead image courtesy of: Photo by Pete Nuij on Unsplash
This work is licensed under a Creative Commons Attribution 4.0 International License.
Joel B. Stronberg
Joel Stronberg, MA, JD., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.