We Urge All Senators to Closely Examine Judge Barrett’s Views on Environmental Law – EDF

“Senate Majority Leader Mitch McConnell says he still plans to proceed with the confirmation of Judge Amy Coney Barrett to the Supreme Court prior to the November 3^rd election. We urge all Senators, in accordance with their duty to the American people under the U.S. Constitution, to take the time needed before casting a vote to closely examine whether Judge Barrett respects the bedrock judicial precedents and statutes that protect public health and the environment for all Americans.

“When it comes to any nominee to the high Court, we ask whether the nominee, if confirmed, respects the congressional enactments and foundational legal precedents that make up our nation’s public health and environmental laws. Judge Barrett’s record warrants close scrutiny for adherence to central tenets of environmental law.

“People threatened or injured by public health and environmental harms depend on access to the courts to redress those harms. This is a pillar of the American justice system, and we recommend Senators and the public carefully review Judge Barrett’s position on it. Judge Barrett has ruled in several recent cases that plaintiffs lack standing to redress injuries. See, for example: Casillas v. Madison Ave. Assoc., 926 F.3d 329 (7^th Cir. 2019) (held consumer lacked standing to challenge a debt collector’s failure to adhere to the Fair Debt Collection Practices Act); and Protect Our Parks, Inc. v. Chicago Park District, 971 F.3d 722 (7^th Cir. 2020) (held residents alleging violations of state public trust doctrine lacked standing to sue on that claim in a case where all parties agreed standing was not an issue). The Senate should thoroughly evaluate Judge Barrett’s views on people’s access to the courts in public health and environmental cases.

“Judge Barrett’s commitment to precedent also warrants careful review. Under the fundamental judicial doctrine of stare decisis, judges are bound by precedent. More than thirteen years ago, the Supreme Court affirmed EPA’s responsibility under existing statutory law to interpret the ‘capacious’ term ‘air pollutant’ to include climate pollution (Massachusetts v. EPA, 549 U.S. 497 2007). This precedent and other pillars of U.S. environmental law must be respected to ensure our nation’s laws continue to protect Americans’ health and well-being. The Senators must determine whether Judge Barrett has demonstrated such respect. See, for example: Groves v. United States, 941 F.3d 315 (7^th Cir 2019) (overruling precedent allowing district courts to enlarge deadline for filing interlocutory appeals); and Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017).

“Judge Barrett’s academic career and short tenure on the U.S. Court of Appeals for the Seventh Circuit do not fully illuminate her views about environmental law and related areas of public law. Will she respect Congress’s and state and local governments’ powers to protect public health and welfare through legislation, including by authorizing administrative agencies with the expertise to implement these safeguards effectively? Does she respect the role of administrative agencies’ scientific and technical expertise in administering federal law? Does she agree with the scientific consensus that human-caused climate change is causing extreme danger to public health and welfare?

“It is the responsibility of each Senator to carefully examine and weigh these vital questions if this nomination is considered.”

• Vickie Patton, general counsel for Environmental Defense Fund