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Amy Coney Barrett is poised to issue critical rulings on whether oil and gas companies will be held liable for the effects of the climate crisis once it is confirmed before the Supreme Court, even though she has acknowledged in the past that she has a conflict of interests. in cases involving Royal Dutch Shell.
As an appeals court judge, Barrett, who is expected to be confirmed in the supreme court on Monday, recused himself from the cases involving four Shell entities because his father worked at Shell Oil Company as a lawyer.
Industry experts and attorneys have raised concerns, and doubts, whether Barrett would again abstain from the cases once she joins the court, in part because there are no rules for supreme court justices that force her to do so.
Pressed on the matter in questions written by Senator Sheldon Whitehouse, a Democrat from Rhode Island, Barrett would not commit to recuse himself from the cases in the future.
“The issue of disqualification is a matter of fundamental law that must be addressed in the context of the facts of each case,” he wrote. “As Justice Ginsburg described the process supreme court justices go through in deciding whether to challenge, it involves reading statute, reviewing precedents, and consulting with colleagues. As a sitting judge and as a judicial candidate, it would not be appropriate for me to offer an opinion on abstract or hypothetical legal issues. “
Barrett has not recused himself in past cases involving the oil industry’s most powerful lobby group, the American Petroleum Institute, even though his father was an “active member” of the oil exploration and production law subcommittee. group in 2016, and twice served as its president.
Environmentalists have already voiced alarm at Barrett’s handling of the environment-related questions at his confirmation hearing, in which he refused to accept the science showing humans are dangerously warming the planet and said he couldn’t. comment on the issue of climate change because it was a “very controversial matter of public debate.” She separately stated that she did not have “strong opinions” on climate change.
His views are behind even most mainstream Republicans, many of whom have stopped denying climate change and have instead begun to downplay its impacts or suggest that a free market and new technology will suffice to solve the problem.
In the very likely event that it is upheld, Barrett’s decision on whether to recuse himself from cases involving Shell given their conflict will be known relatively soon because the supreme court recently agreed to hear a case in which the city of Baltimore is suing. to major oil companies. companies, including Shell, for damages related to the climate crisis.
“Judge Barrett’s evasions last week and in the answers to our questions for the record may be what Senate Republicans needed to ensnare this nominee with his big donors, but that’s not good for a court that must considered as fair process for every impartial decision litigant, ”said Whitehouse. “As the Senate rushes to get her confirmation before the election, we are left wondering if she will recuse herself on matters involving Shell subsidiaries, or the American Petroleum Institute, once in a court with no code of ethics; particularly where his evasions on climate change aligned with industry propaganda. “
At the heart of the Baltimore case, the outcome of which will likely influence similar legal challenges in a dozen other lawsuits across the country, is the question of whether cities and states can claim damages through state laws for damages caused. For the climate crisis, which they blame. in companies.
According to Scotusblog, the case before the supreme court centers on a technical and limited procedural matter on federal law. However, Barrett’s handling of the case will be closely watched, in part because another conservative judge, Judge Samuel Alito, recused himself from the case.
Of 16 lawsuits by state and local governments that want the courts to hold oil and gas companies accountable for the effects of the climate crisis, 13 name Shell.
Jean Su, director of energy justice and attorney for the Center for Biological Diversity, said that if Barrett does not recuse himself in cases involving the company “it is a true reflection of the collapse of the ethics of that court.”
“If you now have the supreme judiciary and the judges who completely disobey the pretty strict and dry ethical rules, you are greatly discrediting the judiciary,” Su said. “It will be a sign that the highest court in the country is political.”
Helen Kang, professor of law and director of the Law and Environmental Justice Clinic at Golden Gate University School of Law, said that if Barrett has previously recused himself “unless there has been a change in circumstances, it appears that he should recuse himself. “.
