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Barrett as Justice Gives Climate Cases Tougher Path to Court

Sept. 28, 2020, 8:45 AM

President Donald Trump’s nomination of Amy Coney Barrett to the U.S. Supreme Court could make it tougher for environmentalists to wage future legal fights.

Barrett has applied a narrow view of standing, the legal bar for bringing a case, in her rulings as a judge on the U.S. Court of Appeals for the Seventh Circuit. That’s a red flag for public interest lawyers whose ability to sue over environmental harms has long been under siege by conservatives who favor stricter standing requirements.

“She’s going to be another vote to narrow standing, so we could see things switch at a fundamental level,” said Brett Hartl, government affairs director for the Center for Biological Diversity, which frequently litigates over endangered species and other environmental issues.

Strict tests for legal standing can keep challengers out of court on issues as varied as civil rights, consumer protections, and employment law if prospective litigants can’t demonstrate that an action has harmed them. Environmental advocates historically have been especially vulnerable under strict standing rules because they’re sometimes viewed as having a looser connection to the activity they’re challenging.

Hartl and others are concerned Barrett will help the Supreme Court chip away at their ability to sue over issues such as federal reviews, permit violations, and climate change impacts.

While some scholars dispute the significance of Barrett’s particular record on standing issues, they agree that a new 6-3 conservative majority on the bench would make tighter rules on environmental standing almost inevitable.

“The addition of a new justice will not change that calculus,” Harvard Law School professor Richard Lazarus said. “It will cement it.”

‘No Harm, No Foul’

Barrett’s public views on standing are mostly found in opinions she’s authored since joining the Seventh Circuit three years ago.

She penned an opinion in 2019, for example, saying a plaintiff lacked standing to pursue claims that a credit union’s website violated the Americans with Disabilities Act. That same year, she concluded that an Indiana woman couldn’t sue a debt collector for violating federal law because the “procedural violation” amounted to “no harm, no foul"—a ruling that created a split with another circuit court.

Chief Judge Diane Wood wrote that the full Seventh Circuit should have revisited the ruling because it was too quick to brush aside the plaintiff’s claim that she faced concrete harm, not just a procedural slight.

The same dynamic often exists in environmental cases, with major federal statutes “premised heavily on agencies following procedure,” Hartl said.

In an environmental case in August, Barrett led a panel decision saying a citizen group lacked standing to raise public trust claims against the city of Chicago over the planned Obama Presidential Center in a local park. She zeroed in on the issue during oral arguments in May, pressing both sides for their views even though lawyers for Chicago hadn’t objected to the standing of the citizen group to bring the claims.

“The fact that she would bring that up sua sponte shows that asserting restrictive notions of standing doctrine to the detriment of environmental plaintiffs is a priority of hers,” University of Maryland law professor Robert Percival said, using the term for when a judge takes up a legal issue without prompting from the parties involved.

Standing is a core issue judges must decide before resolving a case. The citizen group is asking the Seventh Circuit to revisit the ruling.

Scalia Approach

On the Supreme Court, Barrett’s approach could “resuscitate” a campaign by the late Justice Antonin Scalia to reel in environmental standing, Percival said.

Scalia authored a pair of influential decisions in the early 1990s that raised the bar for environmental litigants to get into court. Barrett clerked for Scalia from 1998 to 1999. “I would suspect that in the future, standing is really up for grabs,” Percival said.

But not all legal scholars view Barrett’s record on standing issues as out of the ordinary.

“There is no question that Judge Barrett closely examines pleadings of the ‘injury in fact’ requirement for standing in particular, but I think that could happen in any federal court at any time since the Supreme Court’s environmental standing decisions in the 1990s,” University of Utah’s Robin Kundis Craig said.

Case Western Reserve University law professor Jonathan H. Adler likewise said the opinions he reviewed didn’t suggest “she’s unhappy with the general law of standing in one direction or another.”

Barrett even accepted novel grounds for standing—receipt of unwanted text messages—in a case decided earlier this year, Craig said.

Barrett’s appointment might prompt plaintiffs to “take more care in how they plead standing,” but it won’t amount to a significant shift from the court’s already-conservative leanings on the issue, she said.

‘Disaster Case’

Critics are unconvinced, saying Barrett’s record in her short time on the Seventh Circuit is plenty cause for concern. And her apparent openness to overturning precedent heightens the risk, said Benjamin Driscoll, head of the judiciary program at the League of Conservation Voters, an environmental group.

Alongside a host of important rulings on environmental protection and climate change, advocates are worried a Supreme Court with Barrett on the bench would be more willing to revisit one standing-related decision environmentalists actually celebrate: a 2000 majority opinion from the late Justice Ruth Bader Ginsburg.

She delivered a rare victory for environmentalists on standing, saying plaintiffs had a right to sue over a facility’s permit violations based on “reasonable fears” about pollution impacts. That precedent—as well as the high court’s 2007 determination in Massachusetts v. EPA that states could sue the government over its failure to regulation greenhouse gases—could be at risk, Driscoll said.

And a potential “disaster case” is already looming, Harvard Law’s Lazarus said. He noted the youth-led Juliana v. United States climate lawsuit could reach the court and present a prime opportunity to narrow environmental standing.

If Barrett is confirmed, conservative lawyers are sure to push additional cases to the court that feature key standing questions, said Percival, from the University of Maryland.

“It’s fair to say that issues of environmental standing would be front and center with her on the court,” he said.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Gregory Henderson at ghenderson@bloombergindustry.com

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