In Senate confirmation hearings for Supreme Court nominee Amy Coney Barrett this week, she was asked multiple times about her views on climate science. Although she did not go into much depth, she did offer some clues in her brief responses.
"You know, I'm certainly not a scientist," Barrett said at one point. "I've read things about climate change. I would not say I have firm views on it."
In response to further questioning by Senator Kamala Harris, Barrett declined to share her thinking on the topic. "I will not express a view on a matter of public policy, especially one that is politically controversial," she said.
Throughout the hearing, Barrett, a federal judge, was careful to avoid disclosing her views on a wide range of issues, not just . But experts in climate change communication and climate change law say her comments are concerning.
Professor John Cook is an expert in climate communications and cognitive science at George Mason University, as well as the founder of Skeptical Science and co-author of The Debunking Handbook. He says that although Barrett didn't say much, what she did say is telling.
"The 'not a scientist' comment was a tell — not explicit but suggestive, as it's the go-to catchphrase of— usually a preamble right before they deny the scientific consensus," he told CBS News.
During the hearing, Barrett did not deny the scientific evidence of climate change, but she did refer to it as "a very contentious matter of public debate." While no one can dispute that, it is frustrating to many climate scientists who acknowledge that while there should be public and political debate about climate change policy, they say there is no debate about climate change science.
Senator Harris, who is also the Democratic nominee for vice president, led Barrett through a line of questioning about whether she believes COVID-19 is infectious — "It's an obvious fact, yes," Barrett replied — and whether smoking causes cancer, before asking if she believes " and that it's threatening the air we breathe and the water we drink."
Barrett objected, "You have asked me a series of questions that are completely uncontroversial" on COVID-19 and smoking, "and then trying to analogize that to eliciting… an opinion from me on that is on a very contentious matter of public debate. And I will not do that."
But Cook, who produced one of the most cited studies on the scientific consensus about climate change, says that among practicing climate scientists, agreement that climate change is happening and is caused by humans is greater than 97 percent.
"Climate change, COVID, and smoking are directly analogous situations as in each issue there is scientific consensus. In fact, the scientific consensus on climate change is stronger because the level of scrutiny into expert agreement on climate change is unprecedented," he said.
Many other climate scientists jumped into the conversation on Twitter, also stating that climate change is not up for debate, it's a matter of science fact.
"Virtually every relevant scientific body in the world, including the National Academies of Sciences from 80 countries, has endorsed human-caused global warming," Cook said. In fact, in January of this year 11,000 scientists worldwide released an urgent message in the journal BioScience from Oxford, stating: "We declare clearly and unequivocally that planet Earth is facing a climate emergency."
Barrett said she would apply the applicable law in cases that came before the court, and would defer to agency fact-finding and scientific evidence as required. In regards to climate and the environment, those agency regulations would generally be the EPA's.
"I don't think my views on global warming or climate change are relevant to the job I would do as a judge," she said in response to a question from Senator Richard Blumenthal. "I haven't studied scientific data. I'm not really in a position to offer any kind of informed opinion."
"We now have truckloads of substantial evidence. Anyone trying to deny that climate change is happening, that humans are mostly responsible, and that it is having negative impacts would run into a buzzsaw of evidence," said Michael Gerrard, director or the Sabin Center for Climate Change Law at Columbia Law School, "No court in the world that has addressed the issue has doubted climate science."
Gerrard says where it becomes murky is not so much on the court's acceptance of climate change, but in the judge's views on the role of the courts in dealing with the problem. Barrett's judicial record on cases involving climate and the environment is rather slim, but offers some clues.
"I think there are at least two great dangers here," explained Gerrard. The first is in regards to weakening of the nation's foundational environmental law, the Clean Air Act. The second revolves around standing, a legal term which requires that a party in a lawsuit prove that there is actual or potential harm, in order to be permitted to proceed in the case.
In 2018, as a judge on the U.S. Court of Appeals for the 7th Circuit, Judge Barrett was part of a majority opinion which overruled a lower court decision in a case involving Clean Water Act protections for 13 acres of Illinois wetland that a developer wanted to build on. The appeals court ruled that the government had not provided enough evidence that Clean Water Act protections were warranted.
The Clean Water Act was passed in 1972, shortly after the Clean Air Act, which mandates that the EPA regulate emissions pollution. While the Clean Air Act did not include regulating greenhouse gases when it was passed in 1970, that duty was added in 2007 as a result of a Supreme Court ruling in the case Massachusetts v. EPA. It remains the only comprehensive policy that the federal government has to regulate emissions — so environmentalists are concerned.
Gerrard feels the EPA's ability to regulate greenhouse gases would likely survive a 6-3 conservative court, but could be more limited.
"Though I don't think the Supreme Court will say that the Clean Air Act doesn't cover climate change at all, the Court could say that some of these programs cover climate change but others don't," he said.
In 2019, Barrett wrote the majority opinion in a case where a park preservation group was fighting against the construction of the Obama Presidential Center in Chicago. The court's ruling denied the group had standing in federal court, meaning they did not have a right to sue.
Gerrard explains that in the 2007 Supreme Court case, four conservative justices — Roberts, Scalia, Thomas and Alito — felt Massachusetts did not have standing to bring the lawsuit in question over EPA regulations. But the other five justices disagreed, and their ruling set the stage for the Clean Air Act to regulate the emissions which cause climate change.
If Barrett were to agree with her mentor, Scalia, on this issue, Gerrard said, "What was 5-4 for standing, could flip to 3-6." That would mean certain environmental cases may not see their day in court.
And it may not take long to find out. A very consequential climate change case is headed to the Supreme Court in 2021. The court agreed to hear a case involving fossil fuel companies, including Royal Dutch Shell. (Barrett's father, incidentally, spent much of his career as a lawyer for Shell.)
The issue at hand is a procedural one. The oil giants are being sued by cities and states for climate damage caused by the burning of fossil fuels. The companies are asking the justices to allow the case to be heard in federal court, but the cities and states would prefer it stay in local courts, feeling they'd have a better chance to prevail.
The Supreme Court decision could have implications for many other lawsuits from local governments aiming to hold fossil fuel companies responsible for the of .
"If a strongly conservative Supreme Court restricts standing in the way Scalia liked to, citizens and maybe even states would have a much tougher time suing about climate change and other environmental issues," explains Gerrard.
Gerrard says a possible saving grace would be if the next Congress can finally pass climate legislation that is "clear and specific," tying the hands of the courts.