It was a jarring moment when Amy Coney Barret refused to answer questions about climate change in her confirmation hearings for the position of Supreme Court Justice. She said “I am certainly not a scientist” and that “my views on global warming or climate change are not relevant to the job I would do as a judge”. Ms. Barrett added that she could not respond to questions because it was “too politically controversial.”
As I listened to her responses, I thought of how Supreme Court decisions both horrific and enlightened have had a profound impact on real people. Supreme Court decisions such as Brown v. Board of Education and Obergefell v. Hodges have expanded individual rights to life, liberty and the pursuit of happiness. Other decisions, such as Dred Scott v. Sanford or Korematsu v. U.S. have contracted people’s liberty.
Was Barrett right to claim that “climate change” is controversial? A few examples might be helpful. In 1977 when Exxon scientist, James Black, spoke to a group of oil executives he said “In the first place, there is general scientific agreement that the most likely manner in which mankind is influencing the global climate is through carbon dioxide release from burning fossil fuels” In 1988, Professor James Hansen testifying before congress on climate change and raised awareness among politicians and the public. Before the 1990s there was broad bi-partisan agreement that fossil fuels and CO2 emissions were impacting the climate negatively. Nixon established the EPA in 1970 and in 1988, President Bush was considered an “Environmental Hero” by the EDF. When and why did this bi-partisan agreement about climate change break down?
However in the 1990s, things began to change. Fossil fuel companies realized the financial ramifications of climate change, they needed to take action. Much like the tobacco companies, they attempted, rather successfully, to defy the science, sow doubt and write a new narrative.
Shannon Hall’s article entitled Exxon Knew about Climate Change almost 40 years ago wrote “Exxon has spent more than $30 million dollars on think tanks that promote climate denial.”(Hall, October 2020, Scientific American)
But despite their attempts to discredit the theory of climate change; the earth continues to warm as indicated by the decreasing amount of artic ice, the rising temperature of the oceans, increased sea surface temperature and a rising global sea level. This denial has threatened the planet’s health and made responses to reducing CO2 and other dangerous gases emissions more challenging. This, in the most profound way, is impacting human life. So clearly, the concept of climate change is not scientifically controversial. It has become politically controversial due to the manipulation by the financial interests of the fossil fuel industry, so when Mother Earth (a.k.a. environmental interests) bring a case to the Supreme Court, will she have a Constitutional defense? In 1787 when the Constitution was ratified, there were 3.9 million settlers including 700,000 enslaved people. In addition there were 150,000 indigenous people living in the newly formed thirteen colonies. Could those signees back in 1787, imagine the impact that man could make on his environment. The industrial revolution hadn’t even reached America at that time and farming methods were by nature organic. There were no chemicals to throw into our water sources or into our air. Currently there are over 330 million people living the US and we are part of a world population that is over 7.8 billion people. Our population continues to grow, yet we have the exact same amount of water as we did at the beginning of time. When we refuse to regulate toxins and chemicals that enter the water, when there is less potable water to drink, then we endanger both the life and health of our citizens. Industrial and agricultural wastes need some regulation. We need to provide food for all the inhabitants of this earth and with climate change, droughts and flooding increase, endangering our food supplies. Climate change creates climate migrants with no choice but to leave their dried out fields and seek greener pastures.
Can our Constitution address these issues? Up to now the court has used the Commerce Clause to make judgments concerning the environment. Some of the decisions have been earth friendly such as the decision in Massachusetts et.al v. Environmental Protection Agency (no.5-1120) decided in April of 2007. In this case Massachusetts argued that the EPA was required to regulate harmful emissions. The decision stated “The government’s own objective assessment of the relevant science and a strong consensus among qualified experts indicates that global warming threatens inter alia (among other things) precipitate rise in sea levels, severe and irreversible changes to natural ecosystems, a significant reduction in winter snowpack with direct and important economic consequences and increases the spread of disease and ferocity of weather events.” In other words, climate change impacts the economy. This was a 5-4 decision. Stevens, Ginsburg, Kennedy, Souter, Breyer were in the majority and Scalia, Thomas, Roberts and Alito were in the minority. So although the vote was decisive it was a partisan vote. One vote can make a critical difference. How would the Supreme Court decide if the economic issues were more long term or obscure? In the end would the Supreme Court turn its back on Mother Earth in favor of the fossil fuel industry? Do we need to add a twenty-eighth amendment to the Constitution? An amendment to protect the environment, to give the planet some agency.
In the past few administrations support for environmental regulation has ping-ponged back and forth. President Trump’s administration had been keen to reverse regulations and has reversed more than one hundred environmental rules. It has been reluctant to ban chemicals that are known to impact human health and welfare. In addition, Grist Magazine (issue 50:200) reported that “The Trump administration is burying dozens of studies detailing the promise of renewable energy, impeding a transition away from fossil fuels.”
Justice Barrett and her co-justices have an awesome task before them. It is a certainty that issues concerning regulation of toxic emissions will reach the court. With a father who was an attorney for the Shell Oil Company and her connection to the Heritage Foundation which has been active in questioning global warming, Justice Barrett has certainly been exposed to the idea of climate denial.
The Declaration of Independence promotes the rights to life, liberty and the pursuit of happiness. Our changing climate puts at risk that essential right to the viability of future life. I implore Justice Barrett and the other Justices to educate themselves: Drawdown, The Citizen Climate Lobby, The Climate Reality Project, 350.org, The Catholic Climate Covenant all are non-partisan organizations that can inform them both of the dangers of climate change and some potential solutions. In addition, we all need to explore better ways to legally defend our planet whether through laws, regulations or even a Constitutional amendment.