Since President Donald Trump’s announcement on September 26 that he was nominating Seventh Circuit Court of Appeals Judge Amy Coney Barrett to the Supreme Court, environmental trade press and news outlets with dedicated climate journalists have written about the harm a corporate-friendly justice like Barrett will likely have in decisions ranging from climate and environmental regulation to workplace rights -- but this analysis has yet to become part of the broader media coverage of her nomination.
With the Supreme Court recently agreeing to hear a petition from the fossil fuel industry, which is trying to stop cities and states across the country from holding fossil fuel companies responsible for the damages from climate change, the mainstream news media must have a stronger focus on what Barrett’s confirmation will mean for climate accountability and other vital issues such as efforts to address carbon pollution and keep environmental protections in place.
Barrett is in lockstep with a broad right-wing agenda that includes obstructing climate action and defanging environmental protections
Nonpartisan watchdog group Accountable.US released an analysis of Barrett's judicial record that found she has sided with corporations 76% of the time, which is why a number of those with corporate interests have funded her nomination battle. Investigative journalism website Sludge has detailed how Barrett’s nomination battle is being funded by a right-wing swamp of “finance executives, industrial magnates, and right-wing megadonors,” which includes organizations funded by the Koch network:
The conservative groups spending millions on television, digital, and direct mail ads hope to shore up GOP support for a nominee who is expected to be anti-abortion, socially conservative, and favorable to corporate interests.
The Roberts court has been stuffing its docket with cases in which lower courts ruled against corporate interests—fully 91% in the 2018-2019 term. Already on the docket for the term that starts on Oct. 5 are a number of cases that involve state rulings. … Other cases to be heard by the Supreme Court will feature deceptive commercial activities, arbitration agreements that limit peoples’ ability to sue corporations, and even the enforcement of IRS reporting requirements.
Many of the top funders of groups backing Barrett, including many Republican megadonors, are billionaire corporate executives—in industries like manufacturing, transportation, shipping supplies, and private equity financing—whose economic outlooks could benefit from Barrett being confirmed to the vacant seat.
BP P.L.C., et al., Petitioners v. Mayor and City Council of Baltimore is another instance of the current Supreme Court accepting a case that could bolster the efforts of a powerful industry seeking to duck accountability.
BP P.L.C. v. Mayor and City Council of Baltimore should change the news media’s coverage of Barrett’s nomination
The Supreme Court agreeing to hear the fossil fuel industry’s petition against the city of Baltimore is a clear signal that the media needs to broaden the focus of its reporting on Barrett’s nomination.
Baltimore sued 26 fossil fuel companies in June 2018 for not informing the public that their products were driving global warming and not taking harm-reduction methods. According to an article by InsideClimate News:
In its lawsuit, Baltimore alleges that fossil fuel companies knew for nearly 50 years that the production and use of fossil fuels created greenhouse gases responsible for global warming. Yet at the same time, it says, the companies engaged in a coordinated effort to hide that understanding and undertake a campaign to discredit the growing body of science confirming the connection.
In recent years, there has been a wave of similar climate lawsuits from other cities, including San Francisco and Oakland, California, and the state of Colorado, among many others. They are suing the world’s largest fossil fuel companies for knowingly driving the climate crisis and obscuring the harm their products cause from the public.
The fossil fuel industry has responded by seeking to have these cases heard in federal court, where it expects to receive more favorable rulings than in state courts. After the 4th U.S. Circuit Court of Appeals ruled against the industry’s efforts to change jurisdiction in the Baltimore case, it was already maneuvering to get the case heard before the Supreme Court. According to Vox, the major oil companies are not even bothering to dispute the climate science, explaining, “The lawsuits center on some fundamental interpretations of law, but in nearly all cases, the parties agree on these facts: Greenhouse gases from burning fossil fuels are heating up the planet, which in turn is fueling sea level rise, more extreme weather, and changes in the overall climate.”
After waging a billion-dollar campaign to erode the public consensus on climate science despite knowing for decades that its products were driving climate change and would lead to catastrophic consequences, the industry is now desperate to have these cases decided in federal courts based on narrow interpretations of the law.
This is why it is so troubling that the Supreme Court took up their petition against Baltimore. As Bloomberg wrote:
A ruling against Baltimore would give the oil and gas industry another chance to steer the city’s case toward federal court, and it would reopen jurisdictional questions in climate cases from local governments in California and Colorado.
The Supreme Court is expected to issue an opinion focused on the appellate review question, but it may also send a “strong signal” to lower court judges that the cases belong in federal court, said Karen Sokol, a law professor at Loyola University in New Orleans.
While some state-court proceedings are already on hold pending the outcome in an unrelated set of cases, industry lawyers could push to halt other climate cases against Big Oil until the justices resolve the Baltimore dispute.
Barrett’s confirmation would allow the Supreme Court to deal decisive blows to climate action and environmental regulation, but this hasn’t become part of the larger coverage of her nomination
Environmental-focused news outlets such as E&E News and InsideClimate News have detailed how a Trump nominee like Barrett could thwart the Biden administration’s ability to curb climate change, make it tougher to reverse the Trump regulatory rollbacks, and utilize guidance such as the “Chevron deference” that gives federal agencies “the power to interpret ambiguous language in statutes like the Clean Air Act.”
Some national news outlet, such as The Washington Post have highlighted how Trump’s third Supreme Court appointment would give his administration “a greater chance of making its rollbacks of environmental rules last long after the president leaves office,” while Axios noted, “If President Trump replaces her, the court will likely become more skeptical of regulations that claim expansive federal power to regulate carbon under existing law, and perhaps new climate statutes as well.” As NPR stated, “Climate and environment policies nearly always end up in court these days. They may have a harder time surviving if Amy Coney Barrett cements a conservative majority on the Supreme Court.”
However, much coverage of her nomination thus far -- particularly from right-wing media -- has focused on Barrett’s personal religious beliefs or how should would rule specifically on issues such as abortion and the Affordable Care Act. For example, a recent Media Matters analysis of cable news coverage in the days immediately before and after Barrett’s nomination announcement found that Fox News alone aired 87 segments about alleged faith attacks against Barrett from September 21 to October 1.
Indeed, right-wing media ideologues are very happy about Barrett’s nomination and have played a key role in elevating her to a potential Supreme Court appointment. As a recent National Review article noted, “of course it was conservative and pro-life activists who committed the Republican Party to the judiciary as a cause that was worth campaigning on. Those campaigns provided the political logic to Senators who are now proceeding with the Barrett nomination. Conservative institutions such as National Review provided the arguments for going ahead with the nomination.”
By recently accepting a case that could deal a decisive blow to growing efforts to use litigation to hold fossil fuel companies liable for climate change, the current Supreme Court justices may also be betting on her confirmation. With this in mind, it’s vital for broadcast and cable TV news outlets to incorporate Barrett’s pro-corporate stances, which make her such a threat to climate and environmental regulation, into broader coverage of her nomination.
News media must not equivocate: Confirming Barrett to the Supreme Court would be a decisive blow to climate action and accountability for generations to come
As the Senate begins hearings for Barrett’s confirmation this week, the media must report on how her ascension will position the court to overturn a host of decisions that have made America a safer, more egalitarian, and more equitable society. Just recently, Justices Clarence Thomas and Samuel Alito intimated that they would be open to reconsidering Obergefell v. Hodges -- which established a constitutional right to marriage for same-sex couples -- based on religious liberty grounds.
With regard to climate and the environment, not only will a conservative-majority Supreme Court potentially stop cities and states from holding polluters liable for climate damages and mitigation efforts, but the court could also “lock in opposition to expansive readings of the Clean Air Act that encompass greenhouse gas emissions or trigger a reexamination of the landmark 2007 climate case Massachusetts v. EPA.” The court will also likely uphold Trump’s brazen Big Polluter agenda long after he has vacated the Oval Office.
There is no question that if the Senate confirms Barrett, the Supreme Court’s conservative faction will have the votes to advance a pro-corporate, anti-environmental agenda for decades to come, which is why Trump, the Senate Republicans, and their financial backers in the fossil fuel industry are so keen to push her nomination through so late in the election season. Summing up what Barrett’s jurisprudence could mean to a range of hard-fought battles, The New Yorker recently noted:
The judge has described herself as a “textualist” and an “originalist”—the same words of legal jargon that were associated with [late Supreme Court Justice Antonin] Scalia. ... But these words are abstractions. In the real world, they operate as an agenda to crush labor unions, curtail environmental regulation, constrain the voting rights of minorities, limit government support for health care, and free the wealthy to buy political influence.
As her confirmation hearing begins, news media must better contextualize how Barrett’s nomination is less of an election year gamble and more of a sure bet to advance the country’s most harmful corporate interests over the planet itself.