Published October 14th, 2020 by Budd-Falen Law Offices, L.L.C.
With the passing of Justice Ruth Bader Ginsburg, President Trump has the opportunity to flip one of the most liberal Supreme Court seats in history. Each time a new associate justice joins the Supreme Court, the balance of our nation’s highest court shifts. With the recent nomination of Judge Amy Coney Barrett, special interest groups are eager to examine her decisions and writings to predict where she might stand on major issues like healthcare and abortion. However, what is often far more consequential to landowners and agricultural producers is how Barrett’s confirmation could impact environmental rulings.
Unlike Justice Brett Kavanaugh, the most recent addition to the bench, Barrett does not have an extensive history in environmental and administrative law cases. The environmental cases she has been a part of indicate that she may make it more difficult for environmental groups to bring lawsuits in federal court.
In 2000, the Supreme Court vastly expanded the ability of citizens to sue based in environmental lawsuits. The late Ruth Bader Ginsburg, writing for the majority, stated that a plaintiff did not need to prove actual harm to an individual to have standing to sue in federal court.
Barrett, who currently serves on the 7th U.S. Circuit Court of Appeals, penned the opinion in a similar case but held that a citizen must be able to demonstrate actual and particularized harm (harm to the individual) in order to bring an environmental lawsuit in federal court. What this means is that a citizen cannot bring a lawsuit in federal court merely as a “concerned bystander” seeking to protect the environment. Put simply, “injury to the environment” is not injury to a particular person, which makes it significantly harder for environmental groups to bring federal lawsuits. This is important because many environmental lawsuits originate from individuals who do not even live in the area affected.
In 2018, Barrett reversed an earlier ruling that found 13 acres of Illinois wetlands fell under the protection of the Clean Water Act. This ruling is seen as a victory against government overreach in favor of landowners and may indicate that Barrett is wary of agency overreach. Additionally, Judge Barrett has written articles in favor of courts breaking with bad precedence. This could go a long way in curtailing issues of government deference and the natural corruption such deference creates.
Barrett is known as an “originalist,” which means she believes that the Constitution should be applied as written. This judicial theory may indicate that Barrett will favor limiting agencies to operating within strict interpretations of regulations, a change from the current deferential approach taken by the court.
Should Barrett be confirmed, it may place Justice Kavanaugh in the position of swing vote. Kavanaugh has historically been an outspoken critic of allowing agencies to interpret and enact statutes when Congress has not provided clarity in a specific area, known as Chevron deference. The late Justice Antonin Scalia, whom Barrett clerked for in 1999, similarly favored reining in agencies. If Barrett follows in her mentor’s footsteps, her appointment would be a major win for landowners and agricultural interests.
There are several significant environmental cases that may be heard by the Supreme Court in the next few years, including the validity of several important Trump regulations trying to curtail radical environmental regulations. Thus, Barrett’s take on environmental policy may have a dramatic impact on the shape of environmental law moving forward. While it is impossible to predict how a justice might rule on any given case, Barrett’s views in the environmental realm could go a long way in reining in the governmental overreach that has become prevalent over the past several decades.
Katherine E. Merck
Falen Law Offices, LLC
 Katherine E. Merck is an Associate Attorney with Falen Law Offices, LLC with a primary focus on property rights, environmental, and natural resources law. Falen Law Offices, LLC, has attorneys licensed to practice law in Colorado, Idaho, Illinois, Montana, Nebraska, New Mexico, North Dakota, South Dakota, and Wyoming. This article should not be understood to state or imply that any lawyers of this law firm are certified as specialists in a particular field of law. Colorado does not certify lawyers as specialists in any field. The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability, and not rely upon advertisements or self-proclaimed expertise. This article is informational and is not legal advice. Use of this article or contact with this law firm does not create an attorney-client relationship.
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