Barrett, who currently serves on the 7th U.S. Circuit Court of Appeals, has a relatively slim record on climate and environmental matters. But if she is confirmed to the high court, Barrett, 48, likely would lock up a conservative coalition there, legal experts said. That bloc could smooth the path for future environmental rollbacks or make it more difficult to expand emissions regulations through a broad reading of statutory authority.
“I view Barrett being added to the court as taking it even further in the direction it was already going,” said Jody Freeman, founding director of the Environmental & Energy Law Program at Harvard Law School.
The court “was already headed in the direction of [being] much more skeptical of broad efforts to regulate new problems, to interpret statutes that may be older, to deal with new risks,” she added.
That momentum could be a boon for Trump’s legacy of relaxing environmental standards, as a conservative high court likely would be more amenable to his viewpoint in legal challenges to those efforts. Trump has pushed to roll back regulations on vehicle, power plant and industry emissions.
“If you look at what Trump has done on NEPA regulations, ACE, WOTUS, they are doing rulemakings that don’t push the envelope, [they are] narrow interpretations of law that I think the court would actually be sympathetic to,” said Brett Hartl, government affairs director at the Center for Biological Diversity, referring to the National Environmental Policy Act, EPA’s Affordable Clean Energy rule and the “Waters of the U.S.” rule.
Even if former Vice President Joe Biden wins the White House, Brookings Institution Nonresident Senior Fellow Barry Rabe said, the high court’s new makeup would set up a questionable future for aggressive Biden administration environmental policies.
“I think it likely dials back ambition for any future president to try to achieve a major environmental policy reform through unilateral executive action,” Rabe said. [Continue reading…]