Amy Coney Barrett is poised to make critical rulings on whether oil and gas companies will be held accountable for the effects of the climate crisis once she is confirmed to the supreme court, even though she has acknowledged in the past that she has a conflict of interest in cases involving Royal Dutch Shell.
As an appellate court judge, Barrett – who is expected to be confirmed to the supreme court on Monday – recused herself from cases involving four Shell entities because her father worked at Shell Oil Company as a lawyer.
Industry experts and lawyers have expressed concern – and doubt – whether Barrett would recuse herself from the cases again once she joins the court, in part because there are no rules for supreme court justices that would force her to do so.
Pressed on the matter in written questions bySenator Sheldon Whitehouse, a Democrat from Rhode Island, Barrett would not commit to recusing herself from cases in the future.
“The question of recusal is a threshold question of law that must be addressed in the context of the facts of each case,” she wrote. “As Justice Ginsburg described the process that supreme court justices go through in deciding whether to recuse, it involves reading the statute, reviewing precedents, and consulting with colleagues. As a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals.”
Barrett has not recused herself in the past from cases involving the oil industry’s most powerful lobby group, the American Petroleum Institute, even though her father was an “active member” of the group’s subcommittee of exploration and production law as recently as 2016, and twice served as its chairman.
Environmentalists have already expressed alarm at Barrett’s handling of environment-related questions at her confirmation hearing, in which she refused to accept science that shows humans are dangerously heating the planet and said she could not opine on the issue of climate change because it was a “very contentious matter of public debate”. She separately stated that she did not hold “firm views” on climate change.
Her views are behind even most mainstream Republicans, many of whom have stopped denying climate change and instead begun to downplay its impacts or suggest that a free market and new technology will be enough to fix the problem.
In the very likely event that she is confirmed, Barrett’s decision about whether she will recuse herself from cases involving Shell given her conflict will be known relatively soon because the supreme court recently agreed to hear a case in which the city of Baltimore is suing major oil companies, including Shell, for damages related to the climate crisis.
“Judge Barrett’s evasions last week and in responses to our questions for the record may be what Senate Republicans needed to jam this nominee through for their big donors, but that’s no good for a court that must be seen as giving every litigant a fair proceeding and impartial ruling,” said Whitehouse. “As the Senate rushes headlong to get her confirmation done before the election, we are left to wonder whether she will recuse herself in matters involving Shell subsidiaries, or the American Petroleum Institute, once in a court with no code of ethics; particularly where her evasions on climate change aligned with industry propaganda.”
At the heart of the Baltimore case – whose outcome will probably influence similar legal challenges in a dozen other lawsuits across the country – is the question of whether cities and states can seek damages through state laws for harms due to the climate crisis, which they blame on the companies.
According to Scotusblog, the case before the supreme court is centered on a narrow and technical procedural matter about federal law. But the handling of the case by Barrett will nevertheless be closely watched, in part because another conservative justice, Justice Samuel Alito, recused himself from the case.
Of 16 lawsuits from state and local governments who want the courts to hold oil and gas companies accountable for the effects of the climate crisis, 13 name Shell.
Jean Su, energy justice director and attorney at the Center for Biological Diversity, said if Barrett does not recuse herself on cases involving the company “it is a true reflection of the unraveling of the ethics of that court.”
“If you now have the supreme judicial branch and judges who completely flout pretty cut and dry ethical rules, you are discrediting the judiciary very heavily,” Su said. “It’ll be a sign that the highest court in the land is political.”
Helen Kang, a law professor and director of the Environmental Law and Justice Clinic at Golden Gate University School of Law, said that if Barrett has recused herself previously “unless there has been a change of circumstances, it appears that she should recuse herself”.