What Happens When Another Massachusetts v. EPA Arrives at the High Court?

To understand how judges’ views about science can shape their rulings, consider the precedent-setting 2007 ruling Massachusetts v. EPA. 

In that case, environmental groups backed by the state of Massachusetts asked the Environmental Protection Agency (EPA) to regulate automobiles’ greenhouse gases. George W. Bush’s EPA countered that it lacked authority “to regulate new vehicle emissions because carbon dioxide is not an ‘air pollutant,’” and it asserted that plaintiffs had no standing to even bring such climate cases in the first place.

The court’s ruling for Massachusetts was anchored in its acceptance of science. The majority ruled that yes, climate change has “resulted from a significant increase in the atmospheric concentration of greenhouse gases.” The majority then declared that the state has standing in court because “EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts.”

This angered Supreme Court chief justice John Roberts, who had advocated limiting environmental groups’ access to the courts since the 1980s. In the Massachusetts v. EPA case, he issued his own dissenting opinion that employed climate denial to try to argue that Massachusetts had no standing.

In one passage, Roberts suggested it was too complicated to prove a direct connection between specific damages to Massachusetts and nationwide carbon emissions.

In another passage, Roberts scoffed at the notion of climate-induced sea level rise threatening the state, calling it “pure conjecture” and claiming that it “is difficult to put much stock in the predicted loss of land.”

In still another section, Roberts asserted that climate change may not threaten the state on a fast enough schedule to warrant standing.

“Accepting a century-long time horizon and a series of compounded estimates renders requirements of imminence and immediacy utterly toothless,” he wrote.

Fast forward thirteen years, and Barrett went before the Senate Judiciary Committee and refused to stipulate the climate science that the Massachusetts v. EPA majority acknowledged.

To appreciate the implications of Barrett’s position, imagine a similar science-based climate case being heard by the court — only imagine it is a 6-3 conservative court with a Justice Barrett, who refuses to acknowledge the climate facts that were stipulated in Massachusetts v. EPA. Imagine, in other words, a science-denying Supreme Court rejecting the standing of climate-battered states or cities to even bring climate suits.

The problem extends to upcoming cases of states and municipalities bringing suits against fossil fuel companies directly. Those cases will have to show that oil companies, by their actions, interfered with the public’s basic right to a safe and healthy environment.

But if the justices do not accept climate science, proving that connection could be extremely difficult, if not impossible. Worse, Barrett would have precedent to fall back on: In 2011, the Supreme Court, in an opinion ironically authored by the late Justice Ruth Bader Ginsburg, held that corporations could not be sued for greenhouse gas emissions under federal common law.

“She Isn’t Able to Accept Scientific Fact”

Of course, Barrett has premised her Supreme Court nomination on the notion that regardless of her views on climate, once she puts on the judicial robes, she is unbiased — a trait that any legal expert will tell you is particularly important when adjudicating matters of science.

And yet, in a back-and-forth with California Sen. Kamala Harris, Barrett illustrated just how biased she actually is.

In that exchange, Barrett told Harris she accepted the infectious disease science of COVID-19 and accepted the medical science of smoking’s connection to lung cancer. She called this science “uncontroversial.”

But then Harris asked Barrett: “Do you believe that climate change is happening and threatening the air we breathe and the water that we drink?”

Suddenly, Barrett changed her posture and refused to acknowledge the facts. Instead, she insisted that climate science is “a very contentious matter of public debate” — even though that science is indisputable.

This discrepancy — between Barrett accepting some science but refusing to acknowledge other science — is the heart of the matter. She displayed bias against climate science, which is hardly surprising coming from a hard-core conservative who has familial connections to the fossil fuel industry.

That kind of bias is precisely what makes her confirmation to the court so inappropriate in the era of climate-intensified floods, hurricanes, droughts, and fire tornadoes.

“My concern is that she isn’t able to accept scientific fact. You kind of have to be living in a cave today to not know that climate change has been accepted by every government around the world and over 97 percent of the scientific community. And it’s an undisputed fact that burning fossil fuels causes climate change,” said Julia Olson, the lead attorney in the Juliana v. United States climate case that could end up at the Supreme Court.

“The fact that she seemed to either profess no knowledge or she didn’t know enough, or she couldn’t state an opinion, that is very concerning,” Olson said. “It sounded like some of the things she was saying are the things we’ve been hearing since the 1980s from the Republican Party and the talking points they have about the climate crisis, because it is not a contentious matter of public debate.”

Summarizing the implications, Olson added: “If a judge retains bias about climate science and climate change, and isn’t willing to really follow the evidence in a case and bind their decision and their remedy to the facts and evidence before them, then you could end up with problematic results.”