Few new Supreme Court nominees have generated as much interest as Judge Amy Coney Barrett, because her confirmation could have far-reaching implications by upending the court’s decades-long liberal majority.
More has already been written about Judge Barrett than my poor power to add or detract. It is appropriate in this space, though, to opine on her potential impact on various environment and natural resources issues. And those issues actually underlie much of the debate about the next Supreme Court. The media is focused on the future of Roe v Wade, but no such case is on the court’s docket in the near future.
Instead, the court’s current term, which began traditionally on the first Monday in October, already has several environmental cases on its docket. Those include the Sierra Club’s case against proposed reforms in the Endangered Species Act, and a Sierra Club lawsuit challenging the Administration’s use of Defense Department funds for the border wall. It also includes two very important water cases, both of which bear directly on enforcement of interstate compacts. Texas v New Mexico is about allocations under the Pecos River Compact, and Florida v Georgia involves waters in the Apalachicola-Chattahoochee-Flint River Basin. Both could establish important precedents for the Colorado River Basin states – all of whom are closely monitoring those cases.
Among the most significant current cases is BP v Baltimore, because it is related to a number of other cases where state and local prosecutors are attempting to bludgeon oil companies to death by claiming their products are destroying the Earth, that the companies have always known that, and that they have spent years covering it up. It is the same conspiracy argument that essentially bankrupted the tobacco industry years ago. The Baltimore case is a relatively mundane procedural issue, but court-watchers wonder whether the court might address the larger climate conspiracy issue, which could have world-wide economic consequences.
The Supreme Court has agreed to hear 41 cases during this term, and as usual, more are appeals from the Ninth Circuit than any other lower court. That’s important because the Ninth Circuit rules on more environment and natural resources cases than any other, and it is frequently overruled. Between 2007 and 2019, the Supreme Court published opinions in 993 cases, 191 of them from the Ninth Circuit, far more than from any other circuit. In 70 percent of all cases, the high court reversed a lower court (696 times), and it overruled the Ninth Circuit the most.
Many other environmental cases are not yet on the high court’s docket, but might be soon, partly because of Colorado’s current Attorney General, who wants to be the raspberry seed in Donald Trump’s wisdom tooth, especially on all Administration attempts to streamline regulations. Under his leadership, Colorado has already sued the Administration ten times on environmental issues.
Colorado sued over the Administration’s rollback of Obama-era methane emission rules, and its withdrawal of the “Clean Power Plan,” which was designed to kill America’s use of coal. Colorado also sued over the Administration’s reform of the National Environmental Policy Act, and the power grab known as “Waters of the U.S. (WOTUS).” All previous Attorneys General, of both parties, always opposed any expansion of federal control over Colorado water, until now. Finally, the Administration’s Endangered Species Act reform, intended to establish reasonable timelines for decision-making, generated yet another lawsuit from Colorado’s Attorney General, joining California, New York, Massachusetts, and other Eastern States – and breaking with Alaska, Arizona, Kansas, Montana, Nebraska, Utah, and Wyoming, all of which supported the reforms.
It is easy to see why so much focus is on the Supreme Court, but in important ways, it is misplaced. People have come to view the court as a policy-making body, though it has no legislative powers. That also puts its long-term credibility in grave danger.
Who should control Colorado water, whether the U.S. ought to join the Paris Accord, whether an environmental impact statement ought to be limited to a certain number of pages – these are not judicial decisions, or least they shouldn’t be. They are vital issues, whichever side you may be on. But they are policy matters properly decided by the people, through their representatives in Congress.
Congress and the President are intended under the Constitution to be the people’s process for making decisions – not merely the first step on the way to the real decision-makers in black robes. That makes nine people more important than they were meant to be, and more than they should be.
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