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How Nomination Of Amy Coney Barrett To Supreme Court Might Affect U.S. Climate Action

MARY LOUISE KELLY, HOST:

Environmental policies almost always end up in court these days. And several of President Trump's most contested changes to environmental policy are likely headed to the Supreme Court. If conservative nominee Amy Coney Barrett is confirmed, it could have a major impact on how the U.S. treats climate change, as NPR's Jeff Brady explains.

JEFF BRADY, BYLINE: It's difficult to predict how Amy Coney Barrett will rule on specific cases. Environmental law was not her focus as a professor and not something she dealt with a lot during her time on the court of appeals for the 7th Circuit. Her judicial philosophy does offer clues. She discussed that when her nomination was announced.

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AMY CONEY BARRETT: A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.

BRADY: Barrett's judicial philosophy shows skepticism of government and favors deregulation over regulation, says Harvard law professor and former Obama administration official Jody Freeman.

JODY FREEMAN: I think, generally speaking, it's going to be a corporate court - good for business, good for corporations.

BRADY: Freeman says Barrett is skeptical of federal agencies stretching their authority under laws where Congress hasn't given them clear direction. But Freeman says agencies need to have flexibility.

FREEMAN: Even when Congress passes new laws, there are always ambiguities. There are always things Congress doesn't anticipate. There always is new science, new understandings, new risks, new problems, new data. And it's impossible to specify each and every small kind of decision that the agencies make.

BRADY: And sometimes agencies have to use existing laws to address new problems, like climate change. That's what the Obama administration did after failing to convince Congress to pass legislation focused on the polarizing topic. The EPA turned to the decades-old Clean Air Act to regulate greenhouse gases. A 2007 Supreme Court case, Massachusetts v. the EPA, determined carbon dioxide could be regulated under the act. It became an important environmental ruling. And now some worry a more conservative Supreme Court could overturn or weaken it.

Case Western Reserve University law professor Jonathan Adler thinks that's unlikely on the question of whether greenhouse gases are a pollutant, but he says it's more likely on the constitutional issue of standing - whether Massachusetts and the other states had the right to sue the federal government.

JONATHAN ADLER: Standing in climate cases can be a challenge. And I think, based on what we've seen on the 7th Circuit, a Justice Barrett certainly won't make that challenge any easier.

BRADY: Adler, a conservative, agrees that Barrett is skeptical of agencies overreaching their authority but says that doesn't mean Barrett is hostile to addressing climate change, just that Congress needs to pass more specific laws.

ADLER: Congress doesn't do a lot of that these days. But yes, I'm old-fashioned in that I think that's what we elect members of Congress and that's what we elect senators to do.

BRADY: This appeals to conservatives like Tom Pyle with the American Energy Alliance. He supported Barrett's nomination on his podcast.

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TOM PYLE: Let's duke it out where it belongs - in Congress. You guys win - congratulations. You expand it to include CO2 regulation, you got it.

BRADY: But Reverend Lennox Yearwood with the Hip Hop Caucus says he wants a different kind of justice who will lead on fixing big problems like climate change.

LENNOX YEARWOOD: It is a lifetime position. And so that's why you have to have people in those positions who have a worldview that is one that definitely will go by the Constitution but also understands the nuances of the world that we live in today.

BRADY: Yearwood is among those who say they want the Senate to wait on a confirmation vote until after the presidential election.

Jeff Brady, NPR News. Transcript provided by NPR, Copyright NPR.

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