While the hearings revealed little on Justice Amy Coney Barrett’s views on legal issues, a look back on decisions she made while on the Seventh Circuit court could reveal how she may potentially affect decisions which could impact producers.
Mary Thomas-Hart, environmental counsel for National Cattlemen’s Beef Association, stated on the podcast Beltway Beef, “There are some broader legal questions that can certainly impact how ranchers’ day-to-day business is conducted,” the first being standing and the second being agency deference.
Standing
Regarding standing, Coney Barrett has a strict view on when a plaintiff can bring a case to court.
During her confirmation hearings, Sen. John Cornyn (R-TX) asked her about standing.
“Standing means that you can’t just come to court … and say, ‘I don’t like that act and I think it’s unconstitutional.’ Standing means that you actually have to have suffered what the law calls a concrete injury, so it has to have affected you in some way. People can’t come to court to air policy disagreements only,” Coney Barrett said.
A case involving standing in which Coney Barrett wrote the majority opinion for the Court related to property rights and could be of interest to producers.
In the case, a parks watchdog group and Chicago citizens objected to the city’s deal with the Barack Obama Foundation for the Obama Presidential Center’s location. The plaintiffs argued that Chicago residents and taxpayers have a “beneficial interest” in the park under the public trust doctrine, and the deal was taking their property rights.
Citing an Illinois Supreme Court ruling in a previous case which stated private property owners near a public park have no right in having a park used in a certain way, Coney Barrett wrote, “The Illinois case makes clear that the public trust doctrine functions as a restraint on government action, not as an affirmative grant of property rights.” She also rejected the plaintiff’s claim they would suffer injury from the center’s construction, and the project would damage Jackson Park. “The plaintiffs can’t repackage an injury to the park as an injury to themselves,” she wrote in her opinion, explicitly citing a precedent claiming that damage to the environment is not sufficient to prove standing.
Agency deference
The second legal question of agency deference is the premise on which most environmental groups base their litigation.
“She [Coney Barrett] has been critical of agency deference when an administrative agency has the authority to interpret a statute,” Thomas-Hart stated. “I think it will be really interesting going forward. Justice [Neil] Gorsuch has also indicated an aversion to broad agency deference, so if that is limited at all, it will certainly impact how ranchers run their business.”
Known as the Chevron deference, it “requires judges to defer to ‘reasonable’ agency interpretations of ‘ambiguous’ statutory text,” according to Evan Bernick in the Yale Journal on Regulation.
In 1984, the Supreme Court decided the case of Chevron v. National Resource Defense Council. The case concerned the Clean Air Act and the competing interpretation of the Act regarding states that had not achieved national air standards to establish a permit program regulating “stationary sources” of air pollution.
The Environmental Protection Agency passed a regulation stating manufacturing plants can modify equipment without needing a permit under a “bubble” provision as long as it does not exceed the plant’s emissions. Several environmental groups, including the Natural Resources Defense Council, challenged the bubble provision as contrary to the Act. Overturning the U.S. Court of Appeals for the D.C. Circuit, the Supreme Court found the “bubble” regulation of the statute was a reasonable interpretation of the term “stationary source.”
Justices Gorsuch, Clarence Thomas and Anthony Kennedy, have expressed the lower courts have misinterpreted the Chevron case and are calling for reconsideration of the case.
When asked by Sen. Mike Crapo (R-ID) her opinion on Chevron deference, Coney Barrett cited the Model Code of Judicial Conduct, which states, “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary.”
In June 2018, Coney Barrett signed an opinion against the Army Corps of Engineers regarding a decision on 13 acres of wetlands in Illinois that fell under the Clean Water Act. The corps has designated the area as off-limits as the wetlands qualified as the water of the United States (WOTUS). Before 2015, the Corps defined WOTUS to include waters “subject to the ebb and flow of the tide,” “rivers” that could be used for interstate recreation or commerce, “tributaries” of such waters, and “wetlands adjacent to” other waters of the United States, including tributaries. The closest navigable water to the wetlands was 13 miles away, and the area was surrounded by residential development. The Seventh Circuit reversed the Corps’ claim of jurisdiction, stating it did not provide evidence the site was “navigable-in-fact” waters.
Looking forward
Hart-Thomas indicated areas that could potentially go before the Supreme Court include the new definition of the Endangered Species Act and the National Environmental Policy Act.
According to Roll Call, the Court is scheduled to hear two cases regarding the environment this session: Texas v. New Mexico, a long-running water dispute concerning violating the Rio Grande Compact, and “a Freedom of Information Act lawsuit between the Sierra Club and the U.S. Fish and Wildlife Service over endangered species.”
Brett Hartl, government affairs director at the Center for Biological Diversity, indicated it might be difficult for environmentalists to argue they have been injured by climate change or biodiversity loss, which are difficult to assess if the court shifts as expected.
“Her slim judicial record shows that she’s hostile to the environment and will slam shut the courthouse doors to public interest advocates, to the delight of corporate polluters,” Hartl said in a statement to Reuters.
Environmental groups are anxious about Coney Barrett’s appointment to the court based on her previous rulings and views on precedent, standing and climate change.
During the Rose Garden ceremony after her swearing-in, Coney Barrett stated in her speech, “The oath that I have solemnly taken tonight means, at its core, that I will do my job without any fear or favor, and that I will do so independently of both the political branches and of my own preferences. I love the Constitution and the democratic republic that it establishes, and I will devote myself to preserving it.”
It is impossible to predict how Barrett will rule on any future cases, given her past decisions on various issues and her past writings. Still, her appointment has the potential to impact landowners and agricultural interests. — Charles Wallace, WLJ editor
