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Amy Coney Barrett and the oil money behind the curtain
What does her confirmation mean for holding big business accountable?
Emily Sanders is the Center for Climate Integrity’s editorial lead. Catch up with her on Twitter here.
Well, folks: it happened. Amy Coney Barrett was officially confirmed to the U.S. Supreme Court this week, less than two months after the death of Justice Ruth Bader Ginsburg, and with just a week to go until Election Day.
This hearing — and the circumstances surrounding it — left many of us with more questions than answers about the implications for the climate crisis, for the power of big business over democracy, and for communities seeking justice. I brought in a journalist, two lawyers, and a climate advocate to help us wade through some of the tough questions.
What was the deal with Barrett’s answers on climate change during her confirmation hearings?
Barrett made headlines when she avoided answering rather simple questions about the reality of human-caused climate change. “I will not express a view on a matter of public policy, especially one that is politically controversial,” she said when asked whether climate change is happening and threatening our air and water (not a policy question, by the way), citing that she is “not a scientist.”
That “debate”, of course, has been propagated for years by climate denialists interested in promoting the production and sale of fossil fuels — many of whom also happen to sponsor the groups that campaigned for Barrett’s confirmation.
Barrett's answers are “pretty terrifying” as courts across the country are expected to review more climate-related issues in the years ahead, said Karen Sokol, Professor of Law at the Loyola University College of Law in New Orleans, who was bracing for Hurricane Zeta when we spoke. Those issues could range from the federal government’s authority to regulate greenhouse gas emissions to its ability to enact meaningful climate legislation all the way to communities’ right to hold Big Oil accountable for its campaigns to deceive the public on climate change, and for the resulting damages — the type of cases we discuss most here at EXXONKNEWS.
What do all of these cases have in common? An underlying acknowledgment of the science of climate change and its impacts today. “None of these cases is going to be an argument over whether we’re in a climate crisis,” Sokol said. “It’s like gravity. You have to be on the same page.”
What do we know about Barrett’s ties to Big Oil?
During Barrett’s confirmation process, Democratic senators probed her connections to fossil fuel interest groups, lobbyists, and even Shell, the oil giant named in climate liability lawsuits filed by communities across the U.S. — including one that has a procedural question pending before the Supreme Court.
Barrett disclosed her close ties to Shell early on — her father, Michael Coney, spent much of his career working as an attorney for the oil giant. But she did not mention that her father also spent 20 years as an active member of the Subcommittee of Exploration and Production Law for the American Petroleum Institute (API) — the world’s largest oil and gas trade association, named in three states’ climate liability lawsuits for its major role in climate denial and deception.
“API is the most powerful and influential force in the industry’s lobbying. So if there were concerns over her ties to Shell, this raises many more questions about her relationship to the industry overall,” said Huffington Post climate reporter Alexander Kaufman, who recently wrote about Barrett’s connection to API. “She will inevitably be weighing in on lawsuits that down the road directly affect climate change, but more immediately, that involve some of the very companies that funded climate denial for decades.”
The web of Big Oil connections behind Barrett doesn’t end there. As detailed in recent reporting by AJ Dellinger at Mic, there are a handful of other groups whose sponsors are heavily invested in fossil fuels — America First Action, Club for Growth, and Americans For Prosperity, for instance — who spent tens of millions campaigning for Barrett’s hasty seating on the bench.
Is there reason to believe Barrett would recuse herself from climate lawsuits that appear in front of the Supreme Court?
Well, she’s done it before: as a judge for the Seventh Circuit Court of Appeals, Barrett recused herself from cases involving Shell entities after admitting a conflict of interest. But that doesn’t necessarily mean she’ll do it again, since Supreme Court justices’ decision to recuse themselves is entirely discretionary — justices decide for themselves whether or not they can remain impartial in deciding a case and that decision is not subject to review.
In fact, when pushed on the matter by Senator Sheldon Whitehouse of Rhode Island, a state with a climate liability lawsuit seeking damages from oil and gas companies including Shell, she wrote: “The question of recusal is a threshold question of law that must be addressed in the context of the facts of each case… 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.”
That answer was not satisfying for the climate advocacy group 350.org, which felt compelled to call on now-Justice Barrett to “immediately recuse herself [from] any and all cases concerning climate and the fossil fuel industry” — the first time in its history the organization has ever taken such a position with respect to a member of the court.
“For the Supreme Court of the United States, Barrett's direct ties to fossil fuel lobby groups most responsible for causing climate harms are unprecedented,” said Lindsay Meiman, 350’s senior U.S. communications specialist.
“Not only was her father a very successful lawyer for Shell — he was a major player in the offshore oil exploration world, and acted as an advocate for one company and for one side of the question for his whole working life,” said Ryke Longest, Director of the Environmental Law and Policy Clinic and Clinical Professor of Law at the Duke University School of Law. “How can a person who spent their whole childhood growing up under the influence of a father, who by all accounts she was close with, basically rule against his employer, who supplied her family’s tuition, fees, housing, food — all of their existence?”
What’s even more concerning for Sokol is Barrett’s affiliation to the American Petroleum Industry — especially given the fact that she did not disclose that relationship voluntarily. “[API has] ties to all the defendants in all these cases,” Sokol said. “I think that alone is sufficient for recusal — not just from the climate liability cases but also cases concerning climate policy, because part of API’s strategy has been to fight climate policy whether at the international or federal level.”
What does this mean for communities’ ability to hold corporations accountable?
The stability of our climate may not be the only victim of this court’s links to special interests. Justice Barrett’s nomination, and the nominations of hundreds of other federal judges, is the product of a far-right scheme to remake the judicial system, fueled in part by corporate allies to protect big businesses at the expense of everyday people.
When it comes to climate accountability, the stakes could not be higher. Oil and gas companies blocked climate policies for decades, funded climate denial to protect their short-term profits, and ensured that a measured transition to clean energy would be impossible — all while protecting their own assets from the looming threat. Courts remain the only place communities can turn to hold these companies accountable.
“It’s going to be more and more expensive to address [climate damages],” Sokol said. “And so communities are using the laws in place, which have been used for a long time, to protect their residents.”
So while it’s ultimately up to the other branches of government to craft climate policy, the role of the courts in upholding and interpreting those laws — and deciding questions like who should pay for the fraud that has been perpetrated, and the resulting damages — is more important than ever. As is who sits on those courts, and who works to place them there.
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