This report was written by David Sirota, Andrew Perez and Walker Bragman
Supreme Court nominee Amy Coney Barrett on Tuesday declared that she does not have firm views on the existence and threat of climate change. The court is preparing to hear a climate case involving fossil fuel giants, including Shell Oil, where her father spent much of his career.
With major climate cases pending before the high court, Barrett was asked by Republican Sen. John Kennedy if she had thought about climate change. She responded: “I’ve read about climate change. I’m certainly not a scientist. I mean, I’ve read things on climate change. I would not say I have firm views on it.”
Less than two weeks before the confirmation hearings, the Supreme Court agreed to hear an appeal by Royal Dutch Shell and other oil giants that are being sued by cities and states for the climate damage those companies created. Shell and the others are asking justices to allow the case to be heard in federal court.
In 2018, Inside Climate News reported that “internal company documents uncovered by a Dutch news organization show that the oil giant Shell had a deep understanding, dating at least to the 1980s, of the science and risks of global warming caused by fossil fuel emissions.”
“Recusal Itself Is A Legal Issue…It’s Always Up To The Individual Justice”
In her Senate questionnaire, Barrett produced the recusal list that governs her tenure on the Seventh Circuit Court. That list includes Shell. She wrote of the list: “The Seventh Circuit employs an automatic recusal system to help identify potential conflicts for the judges. Each judge maintains a recusal list, and a computer program flags potential conflicts against that list.”
On Tuesday, when Barrett was asked by Democratic Sen. Patrick Leahy about whether she would recuse herself from any potential Supreme Court cases involving disputes over the 2020 election, she said, “I commit to you to fully and faithfully apply the law of recusal and part of that law is to consider any 'appearances' questions.”
In a separate exchange, Barrett said: “Recusal itself is a legal issue. You know there's a statute, 28 U.S.C. § 455, that governs when judges and justices have to recuse; there's precedent under that rule. Justice Ginsburg, in explaining the way recusal works, said that it’s always up to the individual justice, but it always involves consultation with the colleagues — with the other eight justices. So that’s not a question that I could answer in the abstract."
“She Will Make An Excellent Associate Justice”
The upcoming climate case is particularly important for the fossil fuel industry as it seeks to ward off a wave of climate litigation.
In a 2013 article entitled, “Why Civil Defendants Want To Be In Federal Court,” trial attorney Max Kennerly wrote that federal courts “place express limits on the amount of discovery available” and are “more prone to grant motions to dismiss (and motions for summary judgment) than state courts.”
In April, the U.S. Chamber of Commerce waded into the Shell case that’s now pending before the Supreme Court, filing an amicus brief in support of the oil companies. The Chamber, the nation’s largest business lobbying group, endorsed Barrett’s confirmation late last month and quickly began “mobilizing its resources and lobbying lawmakers and businesses across Washington” to put her on the court, according to Axios.
“America’s free enterprise system depends on the fair application of the law, and the U.S. Chamber of Commerce has no doubt that Judge Barrett will treat all litigants — including the business community — fairly,” Chamber president Thomas Donohue said. “She will make an excellent associate justice.”
Chevron, which is one of the other oil companies petitioning justices to move the case to federal court, donated more than $3.2 million to the Chamber between 2015-2018, according to data compiled by the Center for Political Accountability.
This newsletter relies on readers pitching in to support it. If you like what you just read and want to help expand this kind of journalism, consider becoming a paid subscriber by clicking this link.