with Alexandra Ellerbeck

Questions about how the Supreme Court would rule on climate cases are now officially a campaign issue. 

Amy Coney Barrett, President Trump's nominee for the high court, acknowledged during her confirmation hearing yesterday that the novel coronavirus is infectious and that smoking causes cancer. But during a grilling from Sen. Kamala Harris, a former prosecutor who is now Joe Biden's running mate, Barrett refused to weigh in on whether the changing climate is a threat.

Calling the issue “very contentious,” Barrett said: “I will not express a view on a matter of public policy, especially when that is politically controversial.”

The probing from Harris (D-Calif.) was the culmination of a line of inquiries from the Senate Judiciary Committee on Barrett's view on the changing climate and its causes. 

The questions reveal just how important Democrats expect the Supreme Court to be in allowing future administrations to confront climate change. 

A Democratic administration, if elected, may find itself defending laws and regulations meant to curb emissions in front of a court with a 6-3 conservative majority if Barrett is confirmed. The Democratic ticket is proposing a $2 trillion climate plan that may face legal challenges.

“I certainly do believe your views are relevant,” Harris said via videoconference.

Earlier in the hearing, Barrett told lawmakers during her last day of testimony that her views on climate change are not pertinent to the work she would do on the Supreme Court.

“I don't think my views on global warming or climate change are relevant to the job I would do as a judge, nor do I feel like I have views that are informed enough, and I haven’t studied scientific data,” she told Sen. Richard Blumenthal (D-Conn.).

She added that she doesn't think she is “competent to opine on what causes global warming or not,” echoing her testimony from Tuesday insisting she is “not a scientist” when asked about climate change, dusting off an old Republican talking point.

But legal experts suggested judges should have some scientific literacy.

“One would expect that intelligent people (and judges) would be aware of what is happening to our climate because it has become so obvious by now,” Robert Percival, a director of the environmental law program at the University of Maryland, wrote in an email. “I suspect her refusal to acknowledge climate change is out of fear that she might offend the person who nominated her or his supporters in the fossil fuel industry.”

Michael Gerrard, a professor of energy and environmental law at Columbia, said there is little to no controversy among courts about the scientific reality of global warming.

The notion that humans are responsible for rising temperatures is less controversial among the U.S. public than Barrett suggests. A strong majority of Americans — about 8 in 10 — say that humans are warming the planet, according to a Washington Post-Kaiser Family Foundation poll last year.

Among scientists dedicating their lives to studying the climate, there is virtually no doubt about the basic physics of Earth's atmosphere: The buildup of carbon dioxide and other heat-trapping gases is making global temperatures go up.

“She has made political acceptance the test of scientific validity,” said Lisa Heinzerling, an environmental law professor at Georgetown. “Judge Barrett refused to say whether climate change is caused by humans but in so refusing she spoke loud and clear: Politics trumps science for her.”

When rendering judgments, Barrett said she would accept scientific findings from the Environmental Protection Agency when required to do so.

“If a case comes before me involving environmental regulation,” Barrett said during her exchange with Harris, “I certainly apply all applicable law, deferring when the law requires me to.”

In 2009, the EPA indeed determined that carbon dioxide and other greenhouse gases threatened public welfare by warming the planet.

But on Tuesday, she declined to offer her views on a crucial doctrine called Chevron deference — a principle giving the EPA and other agencies wide berth to interpret and implement ambiguous laws. Many conservative lawmakers and legal scholars, including the late Justice Antonin Scalia, took an antagonistic view toward the doctrine.

“The interpreter in our system should not be the agency that is enforcing the statute,” Sen. Mike Crapo (R-Idaho) told Barrett. “I think the courts should oversee this. Now, that's just my opinion. So the the question that you probably can't answer is, what is your opinion?”

“You're right,” Barrett said. “I can't answer.”

The Supreme Court will very soon be presiding over a climate case.

The high court is set to hear a case next year involving several oil companies, including Royal Dutch Shell, that are being sued by Baltimore. The city is seeking damages from sea-level rise and other impacts of global warming. Barrett’s father spent much of his career as a lawyer for Shell in Louisiana, a low-lying state losing acres a day to the sea.

The issue before the court is not the science of climate change, but a procedural matter that may determine where the case will be heard.

Still, the decision could have broad implications for a suite of other lawsuits from local governments from Hawaii to Rhode Island aiming to hold fossil fuel companies responsible for climate change. States and cities want the cases heard locally, while oil companies think they will find more favorable ground in the federal courts.

Barrett, a former clerk for Scalia, has like her mentor taken a narrow view of who can sue over environmental damages. During her three years as a judge on the U.S. Court of Appeals for the 7th Circuit, she wrote the majority opinion in at least two cases denying opponents standing in court.

Power plays

Candidates in Colorado’s hotly-contested Senate race trade barbs over environmental records and climate change.

Incumbent Republican Sen. Cory Gardner (R-Colo.) and Democratic challenger John Hickenlooper, Colorado’s former governor, sparred over oil and gas drilling and environmental issues during their final debate on Tuesday, the Colorado Sun reports. The race could prove pivotal in determining which party controls the Senate.

Gardner said that Hickenlooper’s plan, which calls for 100 percent renewable energy, would lead to thousands of layoffs.

“I don’t think we have to punish our economy in order to achieve reductions in pollution and to address climate change,” Gardner said.

Hickenlooper has said he wants to make fracking obsolete, a major shift from a candidate who once drank fracking fluid to show it was safe. He dodged a debate question about that stunt and his record defending the industry as governor.

When Gardner touted his role championing the Great American Outdoors Act, which provides funding to the national parks system, Hickenlooper shot back: “Just because you have one environmental bill doesn’t make you an environmentalist." 

A new office for water issues will prioritize demands from farmers.

“President Donald Trump on Tuesday created what he called a ‘subcabinet’ for federal water issues, with a mandate that includes water-use changes sought by corporate farm interests and oil and gas,” the Associated Press reports. “An executive order from Trump put Interior Secretary David Bernhardt and Environmental Protection Agency Administrator Andrew Wheeler in charge of the interagency water body.”

The executive order sets out priorities including increased dam and other water storage, which has long been a priority for farmers but which some environmental groups say could leave wildlife and habitats without enough water. The order also directs the new office to implement a water reuse plan, which could allow oil and gas companies to dispose of chemical-heavy wastewater on crops or in aquifers.

California Westlands Water District, the nation’s largest agricultural water district and a former client of Bernhardt, stands to benefit from the new directives, per the AP. Bernhardt has denied that this represents a conflict of interest that could affect his work.

Thermometer

Earth had its warmest September on record and could be on track to have the hottest year.

“The planet just recorded its hottest September since at least 1880, according to three of the authoritative temperature-tracking agencies in the world,” our colleague Andrew Freedman reports. “The data, most of which was released Wednesday, shows that 2020 is on track to be one of the hottest years on record, with the possibility of tying or breaking the milestone for the hottest year, set in 2016.” 

This year’s heat is particularly remarkable because it occurred during a La Niña event in the Pacific Ocean, a climate phenomenon that tends to lower global temperatures slightly. 

Europe, Asia and the Gulf of Mexico have had their warmest year so far, according to data from NOAA. Meanwhile rapid warming in the Arctic, including a bad wildfire season in Siberia, has raised concerns that a climate feedback loop may already be in play and could drive even faster warming. 

Thousands who fled Louisiana hurricanes languish in hotels.

Hurricane Laura created a diaspora of evacuees, many of whom have been without homes for six weeks, our colleague Dan Lamothe reports. More could end up in a similar situation after Hurricane Delta made landfall on Friday, just 15 miles east of where Laura slammed into shore. Many areas in southeastern Louisiana have been hit twice by devastating flooding and winds.

Evacuees are now “waiting for help, sometimes in seedy hotels far from home, hoping that the Federal Emergency Management Agency will come to their rescue with temporary homes, funding, anything,” Lamothe writes.

While some families have received federal assistance, others have had requests for hotel money or housing denied. Lake Charles Mayor Nic Hunter, whose city has documented more than 6,000 evacuees, told The Post that he has pleaded with FEMA for a rapid housing plan and that he was told temporary units could arrive in the next couple of weeks.

Extinction events

Animal conservation groups plan to sue the government over protection of giraffes.

The Humane Society of the United States and and other animal welfare organizations allege that the federal government has failed to protect giraffes under the Endangered Species Act, ABC News reports. Although the Fish and Wildlife Service determined last year, after a separate lawsuit, that giraffes could potentially qualify for protection, the agency has not made any formal decision.

There are fewer than 69,000 wild adult giraffes in the world. A listing could prevent U.S. trophy hunters from targeting the animals and could restrict imports of products made from giraffe parts.

Some coronavirus vaccines use products from sharks, but drugmakers aren’t driving a mass slaughter.

Several companies make use of shark-liver squalene, an oily substance with immunity-boosting powers, as an ingredient in vaccines, the New York Times reports.

Although activists sounded the alarm earlier this month that efforts to create a viable inoculation could mean harvesting tissue from more than half a million sharks, researchers have said that it is almost impossible to make such estimates. Many promising vaccine candidates don’t use the substance at all, and even for those that do, it probably comes from sharks hunted for meat or fins or captured for bycatch.

Advocates for sharks acknowledge that far more fish-sourced squalene is routed toward cosmetics. Groups such as Shark Allies say that they don’t want companies to stop or delay vaccine production, but they hope companies will start testing alternatives.

Energy transitions

The worldwide number of methane hot spots soared, despite an economic slowdown.

The Paris-based firm Kayrros used satellite imagery to determine that the number of methane spots increased 32 percent this year, compared to the first eight months of 2019, our colleague Steven Mufson reports. “The largest contributors to rising methane releases were the United States, Russia, Algeria, Turkmenistan, Iran and Iraq," with the biggest one of all coming from a pipeline in the United States.

Some of the leaks of methane, a greenhouse gas 80 times more potent than carbon dioxide over a 20-year period, resulted from temporary pipeline shutdowns, while others resulted from long-term faulty maintenance. While the pandemic led to lower demand for natural gas, which consists primarily of methane, it also may have led to looser standards.

Philanthropies and investor funds are channeling money into climate technologies.

A growing number of philanthropies and mission-driven for-profit investment funds have begun channeling money toward promising clean technologies that could combat climate change but which might otherwise struggle to attract traditional investors, Katherine Ellison writes in The Post.

Prime Coalition, a nonprofit group in Cambridge, Mass., is one of a growing trend of fledgling nonprofit organizations looking to fund “tough tech” — technology that is often unsexy, capital intensive, and unlikely to generate immediate profits. The organization has funneled more than $24 million into such ventures as long as they can make a compelling case that they could save at least half a gigaton of greenhouse gas emissions a year by 2050.

Meanwhile, on a much larger scale, Bill Gates’s for-profit Breakthrough Energy Ventures boasts a $1 billion fund focused on prioritizing climate impact over quick profits in its investments, Ellison writes.