Amy Coney Barrett on Court Seen Handcuffing Agencies’ Climate-Change Fight

(Bloomberg) -- The confirmation of Amy Coney Barrett to the Supreme Court could make it harder for future administrations to adapt laws that have been on the books for decades to meet emerging challenges such as climate change.

That's because Barrett's confirmation would strengthen a conservative bloc of justices who take a narrow view of federal agency power -- potentially spelling doom for efforts to write regulations to thwart greenhouse gas emissions and promote environmental justice.

The prospect is driving a wave of opposition to Barrett from environmental groups, which have joined abortion rights advocates and gun control supporters in vigorously fighting the appeals court judge's nomination to replace the late Justice Ruth Bader Ginsburg on the high court. They say Barrett's rulings and writings show she would close the courtroom door to groups challenging environmental harms and public safety dangers, while reining in federal agencies that want to address them.

“Barrett has made clear her disdain for federal agencies and the public protections they issue, which puts our ability to tackle climate change directly in her cross hairs,” said Gene Karpinski, president of the League of Conservation Voters. “And her positions on access to justice would make it even harder for communities of color to seek justice for repeated and targeted environmental harms.”

With Congress deadlocked on some of the biggest issues facing the U.S., from immigration to climate change, federal regulators have increasingly stepped in to fill the void. For instance, former President Barack Obama turned to the now 30-year-old Clean Air Act to write regulations curtailing greenhouse gas emissions from power plants.

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But if Democrat Joe Biden wins election and tries to follow the same model of using “outdated statutes to address cutting-edge problems,” he may face a real challenge if Barrett is confirmed to the Supreme Court, said Tom Lorenzen, who leads the environment and natural resources practice at Crowell & Moring LLP. “If agencies do want to act, they're going to need a more active Congress that is willing to legislate.”

Biden may be even more reliant on federal agencies to use existing laws to tackle weighty issues if Republicans retain control of the Senate, a scenario that would make it harder to enact new, tailor-made laws.

Barrett's three-year-tenure as a judge on the 7th Circuit Court of Appeals provides a limited view of her approach to federal regulation and environmental policy. And the previous opinions of Supreme Court nominees are not always a reliable indicator of how justices perform once installed on the high court. Still, legal experts say Barrett's writings and rulings show her to be a textualist in the mold of the justice she once clerked for, the late Antonin Scalia -- someone who favors a strict reading of the text of federal statutes.

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A Supreme Court that's more skeptical of agency authority could look kindly on Trump administration rewrites of federal rules limiting the federal government's reach when it comes to clean water oversight and required environmental analysis. With Barrett's confirmation, the court is more likely to “embrace those more self-limited interpretations,” said Joe Goffman, executive director of Harvard Law School's Environmental and Energy Law Program.

Even before Ginsburg's death, the Supreme Court could often muster a five-justice majority to limit agency action, said Jeff Holmstead, a partner in Bracewell LLP and former assistant EPA administrator under George W. Bush.

That wing of the court includes President Donald Trump's previous two Supreme Court appointments -- Justices Neil Gorsuch and Brett Kavanaugh -- who have taken a dim view of the Chevron doctrine that says federal agencies have wide latitude to regulate when Congress has been ambiguous.

“The kind of regulatory expansionism that we've seen is going to run into real problems in the Supreme Court,” Holmstead said.

In a 2014 Cornell Law Review article, Barrett argued Congress can't delegate some of its constitutionally designated powers to the Executive Branch -- a reading of the so-called “non-delegation doctrine” that could make it harder for federal agencies to maneuver. The Supreme Court's five conservatives have already indicated interest in revitalizing the non-delegation doctrine.

“She does not reflexively defer to administrative decision making, and her scholarship recognizes that the Constitution assigns certain exclusive powers to Congress which it may not divest,” said Peggy Little, senior litigation counsel for the New Civil Liberties Union that seeks to tame what it considers government overreach.

The effect wouldn't be just to restrict the power of unelected federal bureaucrats, said Joshua Galperin, a professor at the University of Pittsburgh School of Law. It would also limit the power of voters whenever Congress decides agencies are better suited to make some decisions and the high court disagrees.

With Barrett, “this court might make it so that agencies simply cannot be as creative with their use of statutory authority,” Galperin said. “The Supreme Court may lead us down a path where Congress must be absolutely explicit in what it wants the agencies to do and leave almost no blank spaces for agencies to fill in.”

A Biden administration may need to be more straightforward in its approach, said Brett Hartl, government affairs director for the Center for Biological Diversity.

“The lesson should be do things that are bold, but well within the boundaries of the law, because this court is going to be incredibly unhelpful,” Hartl said. And in cases where “you only get one shot at this, don't blow it on a legal theory that's totally untested. Use safe statutory provisions instead.”

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