 Hi, everyone and welcome. My name is Courtney Collins and I'm the Assistant Director in the Environmental Law Center at Vermont Law School. And I would like to welcome you to the 2021 Hot Topics in Environmental Law Summer Lecture Series. We are pleased to welcome viewers today. Today's talk is worth one Vermont CLD credit, so please keep track of which talks you are attending. There will be time for Q&A after today's presentation, so please feel free to enter your question into the chat box from where you are watching at any point during the lecture. And we'll get through as many questions as we can in the remaining time today. Today we are very pleased to welcome Pamela King. Pamela leads E&E news coverage of environmental litigation at the Supreme Court and beyond. She has previously covered energy law with the Interior Department's oil and gas policies. She has reported on the U.S. shale boom and bust and its impact on the economy, communities and the environment, and she has traveled across the country to document the ripple effects of fossil fuel extraction. She holds a bachelor's degree in journalism from Northeastern University and the master's degree in environmental resource policy from George Washington University. Pamela is one of Vermont Law School's 2021 Summer Media Fellows and has been with us here on campus for the past two weeks, and she was selected from a highly competitive pool of applicants. Today she is presenting from Ginsburg to Barrett how 2020 transformed environmental battles at the Supreme Court. We are very pleased to welcome Pamela King today and please join me in welcoming her. Thank you so much Courtney for that really nice introduction. And thank you to Vermont Law School for having me here this summer. I'm going to see if I can just jump right in here and share some of my slides. Today we're going to talk about what we know about how the replacement of the late Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett has already or may soon affect environmental disputes that make their way up to the Supreme Court. My goal is for everyone here to get a really broad understanding of how the court shift to a conservative majority or to a deeper conservative majority will affect efforts by the Biden administration and future administrations to introduce really strong environmental regulation and to get climate change under control. But I'd also like everyone to come away with a nuanced view of how we can't perfectly predict how justices will vote in any given case based on their ideology. So to kick things off I'm going to give a brief rundown of some basic Supreme Court procedure. I'm not a lawyer and I know that many others here aren't. So for those of you who don't know how things work at the Supreme Court. The typical case comes up as a petition appealing a decision by a lower court and throughout the course of its term which runs from about October to June sort of like a school year. The court either grants or rejects the petitions that come its way. And it takes a vote of four justices to grant a petition. The court only grants about like 1% of cases that come before it. So once a case is granted it's then briefed and it moves to oral argument which during non coven times is a really special thing for a reporter to cover cameras aren't allowed in the courtroom. There's no audio there is audio available but it comes a few days later. Electronics are allowed even for journalists, which means that we have to you know frantically write things down by hand in a notebook as fast as we can during arguments and hope that we have an unobstructed view of the justices so that we can tell who's talking. And then you run back frantically to the press room to file by deadline. It's really tough, but it's one of the best parts of the job. So, each argument lasts about an hour and the justices are talking not only with the lawyers arguing the cases, but also with each other. And all of this obviously looks a lot different since the pandemic and we're going to talk a little bit about that later. Arguments are the only public window into what the justices are thinking about a case until an opinion is issued, and lots of legal experts are really good at analyzing arguments to figure out how the justices might be thinking about ruling in the case. But you know those predictions aren't always correct. And then we wait for opinions after argument. And those opinions, opinions are released throughout the term up to late June or early July, and bigger decisions come at the end of the term. We got the Supreme Court's last opinions for the current term to this morning. Okay, so with all of that background out of the way, let's dig in. So to understand where we are now, I want to first look back to where we were last term. Last term was the 2019 term, which ran from fall 2019 to summer 2020. And during the 2019 term the court's nine justices were Chief Justice John Roberts, you can see here at the top, and four associate justices who were appointed by Republican presidents. So we have Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh. You can see their photos here in these top two rows on this slide. The four liberal justices were Justice Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Ginsburg was the court's eldest justice at the time. And she's a liberal icon. She was known primarily for her advocacy for women's rights. But as we'll talk about in this presentation, she was also a reliable vote for environmental interests. This term was also the first time the court started conducting remote oral arguments because of the COVID-19 pandemic. And again, we'll get to that a little bit more later. So the 2019 term had a few significant cases that either dealt directly with environmental issues or had a big impact on environmental law. Environmental cases can touch issues ranging from clean air and clean water to land ownership. The parties can be environmental groups, landowners, states, the federal government, companies. So these are the cases, a few of the cases we saw last term on these particular environmental issues. County of Maui v. Hawaii Wildlife Fund was a clean water act case, and it dealt with the scope of the statute. And whether it covers groundwater or pollution that moves through groundwater on its way to a water body such as the Pacific Ocean, that, you know, absolutely falls under this umbrella of clean water act protections. And the answer is, it depends. This was a six to three opinion led by Breyer. And, you know, as a side note, this was a particularly fun argument to watch. As Breyer sort of came up with his test for determining whether this pollution falls under the Clean Water Act, sort of on the spot in the case. He came up with this functional equivalent test which Robert's actually interjected during argument to ask Breyer to define. And Breyer got the chance to do that in the opinion for the case. He sort of set out these, you know, seven factors for determining whether this pollution falls under the Clean Water Act. And whether this ruling results in more regulation or less is still to be determined, but environmentalists when the decision came out really cleaned it as a win. And a surprising one at that from a court that was again, remember, dominated by conservatives was a five to four conservative majority. So they were expecting that the court could potentially say, you know, no, this pollution is not covered under the Clean Water Act. Roberts and Kavanaugh joined the liberal justices to create the six member majority in this case. Atlantic Richfield v. Christian was an environmental cleanup case. It asked whether landowners near a superfund site could sue for cleanup beyond what EPA had planned for a site in Montana. In a seven to two decision led by Roberts, the court said yes, if the landowners have EPA's blessing. McGirt v versus Oklahoma was a tribal lands case. And this is one of those cases that wasn't strictly environmental, but it could have major implications for environmental regulation. In a five four decision by Gorsuch, the court found that about half of Oklahoma is still tribal reservation land was a huge win for the tribe, and stakeholders are still sorting out what that means for regulation of say, the oil and gas industry in the the DACA case Department of Homeland Security the regions. This is an interesting one you know why are we talking about DACA and a presentation on environmental issues. Well this particular case centered on the administrative procedure act, which governs federal rulemaking and is central to environmental law. The reason the law of agency rulemaking is so crucial to environmental law is because the environmental disputes that we see in the courts really tend to be these battles over rules from EPA the interior department and other agencies that deal with environmental issues. The DACA case was a five to four decision led by Roberts, who was joined here by the courts liberal wing, and he said that the Trump administration needed to do a better job of explaining why it had rolled back. This Obama era policy that had allowed about 700,000 people known as dreamers to apply for two years of deportation protection as well as other benefits. This was a huge ruling and came as a surprise to many, again, considering the ideology, the ideological majority of the court at the time. Pipelines crossing the Appalachian Trail Atlantic coast pipeline, the cow pasture river preservation Association. This was a huge case in the environmental world, although it ended up having pretty limited impact in a seven to two The Supreme Court sided with developers of the Atlantic coast natural gas pipeline on its argument that the federal government had properly issued this permit for the project to cross the Appalachian Trail in Virginia. This refers to decision by a lower court. Thomas wrote the majority opinion, which was in favor of the pipeline and Ginsburg joined the majority in this case. The pipeline's win was short lived. The project was canceled later due to ongoing economic and regulatory concerns. So that was a lot of information to take in. And so what does this all mean. The takeaway from the 2019 term was that this was very much the Roberts court. He's the ideological center here. He voted with the majority in 97% of cases during the 2019 term, according to statistics from SCOTUS blog. Roberts had a major role as a swing vote when the court still had this five for conservative majority majority last time less term. As you saw in some cases like the Maui Clean Water Act case that we just talked about Roberts could bring along another conservative justice like Kavanaugh to build a bigger majority alongside the liberal wing. So court wrapped up the 2019 term early last summer, and it was just on the verge of coming back for the 2019 for the 2020 term, which is the current term. When on September 18 2020 justice Ginsburg died. The world was rocked by this news and questions immediately sprung up about what the loss of Ginsburg would mean for the court, especially if President Trump were allowed to choose her replacement. So before you get to get to Ginsburg replacement, I want to dig in a bit on her environmental legacy. She's also, she's obviously well known for issues outside of the environmental realm, but again for the purposes of this presentation we're looking at, you know, how did she come down in environmental cases. And I've highlighted three key cases here. One is significant ruling for the environment. Ginsburg gave environmentalists a voice in court. Standing for those who are not familiar is a legal doctrine that courts use to determine whether a challenger in a case has the power to file its lawsuit in the first place. Basically it's a test to determine whether a party suffered an injury or harm from a regulation or development or whatever it is that's at issue in the case. If a judge thinks a party in the case doesn't have standing, that judge is going to toss out the lawsuit without ever reaching the court issue in the challenge. So in the 2000 case Friends of the Earth v. Laidlaw environmental services, Ginsburg led a 72 decision that said environmentalists had standing to seek penalties against the company that was spewing pollution into a South Carolina river. A lower court had dismissed the case as moot because the company was no longer polluting the river. And it found that Friends of the Earth could not show that they were suffering an injury because the pollution had stopped. But Ginsburg said that the company could restart its operations and the pollution at any time. And she said that Friends of the Earth had raised significant concerns about the impact of the pollution on recreational aesthetic and economic interests. So the ruling was a landmark decision. And it came at a time when the conservative justice Antonin Scalia was on a campaign to block environmental groups from bringing their lawsuits to court. Scalia was a close personal friend of Ginsburg's, although they were ideological opposites. He wrote the dissent in Laidlaw and he said that the majority led by Ginsburg had created watered down requirements for initial standing. Ginsburg also played a key role in two major greenhouse gas emission cases. She was in the majority in Massachusetts versus EPA, which said that EPA could regulate greenhouse gas emissions as air pollutants under the Clean Air Act. This decision was crucial because a lot of our environmental statutes were written in the 60s and the 70s when climate change wasn't on our radar in the way that it is today. So while the Clean Air Act doesn't explicitly address greenhouse gas emissions, it is one of the few tools at EPA's disposal to really get at this pressing issue of global climate change. And Congress is highly unlikely to pass new climate legislation. And this issue of regulating greenhouse gas emissions under the Clean Air Act is an issue that I'm going to keep coming back to during this presentation. So with Ginsburg's death, Breyer is the only member of the 5-4 majority in Massachusetts versus EPA who still sits on the court. And some environmentalists have raised concerns that this landmark case could eventually be overturned, although other legal experts have said, you know, that's unlikely. Ginsburg also wrote the unanimous opinion in American Electric Power versus Connecticut, which came after Massachusetts versus EPA. The ruling said that the Clean Air Act and EPA action displace any federal common law right to seek reduction of carbon dioxide emissions from fossil fuel fired power plants. This decision, as we'll discuss later, is coming up in a growing body of climate liability lawsuits. In which state and local governments are suing the oil and gas industry to try to get them to pay for flooding, wildfires and other climate impacts that local governments are now experiencing and have to pay to address. We'll talk a little bit more about that later. So Ginsburg's dying wish was that she not be replaced until the new president was installed. And I'm sure you'll all remember that the general election between Trump and Biden was underway at this point. Some people were already recalling Senate Republican stonewalling of Merrick Garland as President Obama's choice to replace Scalia when he died in 2016. Republican leaders said back in 2016 that, you know, Garland couldn't come forward because, you know, primary was already underway in an election election year. You know, Garland was never confirmed. And Trump prevailed over Clinton later in 2016 and Trump later nominated or such for that open seat on the Supreme Court. Trump nominated Amy Coney Barrett just one week after Ginsburg died. Barrett had served on the Seventh Circuit, which is a federal appeals court in the Midwest for she had been on that court for about three years at the point she was nominated. And she had been an academia before that. So because of her limited record as a judge, figuring out what kind of justice Barrett would be was a little tough. And, you know, this is the kind of prognosticating that happens after a justice is nominated. People wanted to know how Barrett would rule on gun rights access to abortion and other key issues. So they're looking back at her prior decisions and writings to see what she might have said before. Over at any of course we were particularly focused on how she could come down in environmental cases. So immediately after Barrett was nominated she's pictured here in the center comparisons to Ginsburg began who's over here on the left. You might naturally expect those comparisons since Barrett is replacing Ginsburg. But there were also comparisons of Barrett to her mentor Scalia who's pictured here on the right. Barrett clerked for him in the late 90s. And in her nomination speech Barrett said Scalia's judicial philosophy is hers too. And we're going to talk about that a little bit more in just a second. Like many Trump appointed judges. Barrett was relatively young. She was in her late 40s when she was nominated. And remember that federal judges and Supreme Court justices serve lifetime terms. So you know all of the judges and justices that are appointed to these courts are on the courts pretty much for life. And you know that includes the three Supreme Court justices that Trump appointed Gorsuch Kavanaugh and Barrett and the more than 200 federal judges that he picked during his four years in office. So that's part of what people are talking about when they talk about Trump's lasting impact on the federal courts, including the Supreme Court. So this connection between Barrett and Scalia that I mentioned just a second ago becomes a key sticking point for environmentalists because Scalia particularly later in his career. Had a really restrictive view of how far federal agencies could go to regulate, say pollution under the Clean Water Act or greenhouse gas emissions under the Clean Air Act. Scalia described himself as a textualist, which means that he interpreted statutes like the Clean Air Act according to the ordinary meaning of their text. While textualism is often espoused by conservative jurists. It doesn't have to result in an outcome that might be thought to align with any particular ideology. So for example, some of you may remember that Gorsuch, another Trump appointee and a textualist led a six to three opinion in this case. And this was a major win for the LGBTQ community in and of itself, but some legal experts also suggested at the time that Bostock could lay the groundwork for a favorable ruling perhaps on the question of whether the Clean Air Act can be read to encompass regulation of greenhouse gas emission. But, you know, that remains to be seen. One of the first concerns environmentalists raised after Barrett's nomination was whether she would take a restrictive view of standing. You'll remember that that's an issue that Ginsburg had a very expansive view of in the laid-law case. So environmentalists were concerned about this issue because of Barrett's ruling as a Seventh Circuit judge in the 2020 case protect our parks, the Chicago Park District. The case involved an attempt by a park preservation group in Chicago residents to block construction of the Obama Presidential Center in Chicago's Jackson Park. Barrett wrote that the challenger's lack of standing pulls the rug out from under their arguments. Perhaps one of the biggest concerns that came up during Barrett's confirmation hearings was how she would decide cases involving climate change. During her confirmation hearings, Barrett received some questions about climate change, but she wouldn't make a definitive statement about climate science. And that led many people to raise fresh concerns over whether she would vote to overturn major climate precedent, like the Massachusetts versus EPA case that we discussed earlier in the presentation. As a note of comparison, Kavanaugh and Roberts have acknowledged the reality of climate change to conservative justices. So the 2020 term begins in October 2020. Barrett is swiftly confirmed to the Supreme Court and she's hearing cases by November 2020. And her addition to the court creates a 6-3 conservative majority and deludes the power that Roberts had as a swing vote. As you'll recall, we saw a couple examples of that in the 2019 term. The three liberal justices are shown here in the first row of photos, and the court's six conservative justices are at bottom. Another important reminder, it takes the vote of four justices to even hear a case in the first place, the first place. And you know, the court doesn't hear every case that comes its way. So the liberal wing just has three members now, and it needs a conservative ally just to accept a case in the first place. So you remember that the 2019 term, we very much had the Roberts Court. Now Brett Kavanaugh is the ideological center of the court. He was in the majority of 97% of cases in the current term. According to statistics on SCOTUS blog, I don't know if today's opinion releases change those numbers at all. But it's, you know, Kavanaugh 97% of the time, followed by Roberts, followed by Barrett. Kavanaugh as the court's ideological center means the court has made a significant shift to the right. So now instead of just winning over Roberts, environmental advocates have to win over Kavanaugh or another conservative justice to build a majority in their favor. There are two reasons, major reasons that a Kavanaugh court may be bad news for environmentalists. A Kavanaugh court may not vote in favor of EPA action to curb climate change, such as the Obama era Clean Power Plan governing carbon dioxide emissions from coal-fired power plants. Back when he was a judge for the DC Circuit, Kavanaugh actually heard oral argument on the Clean Power Plan. The DC Circuit never reached a final decision on the regulation because the Trump administration eventually scrapped it. But Kavanaugh said at the time that he thought the Clean Air Act was a thin statute that wasn't designed to address climate change. The Kavanaugh court could also be bad news for expansive readings of the Clean Water Act. Although Kavanaugh joined Roberts and the liberal wing in that Maui ruling, the Clean Water Act ruling that we discussed from the 2019 term. And again, environmental groups saw that one as kind of a win for them. But Kavanaugh did write a concurring opinion in that case that favored a more restrictive view of which of the nation's waters were eligible for Clean Water Act protections. And again, that narrow view of the statute would restrict the federal government's regulatory reach over the nation's waters. So the 2020 term, which is the current term, was Barrett's first on the court. And, you know, people immediately wanted to know how is she settling in? How is she going to rule in these big cases that are coming up? One place to start judging a first term justice is by examining her questioning style. That's been a tough task or a tougher task during the 2020 term. Because remember the court's still hearing oral argument virtually. The images you see here are screenshots from C-SPAN audio broadcasts of this term's remote oral argument. When arguments are in person, the lawyer who's arguing before the court has about two minutes to make his or her case before the justices begin peppering them with questions. It's always interesting and informative to see which justice asked the first question and to see which justices engage a certain point or hypothetical as it's being posed. In the remote argument format, the justices each have a few minutes to ask questions and they go in order of seniority starting with the Chief Justice. Arguments are no longer held at the court. Instead, they're broadcast on C-SPAN for everyone to hear. For me, all of this makes for a more organized reporting experience. I can type my notes instead of scribbling them in a notebook. I can make a recording. I can even write my story while arguments are happening. But it's much less fun. And it has made it a little bit more difficult for legal experts to sort of read the tea leaves after arguments. And in this particular term, it's made it a little tougher to get that early sense of how Barrett was really settling into the court. Although I will say there were still predictions of course after arguments and cases. I'll also say that the remote argument format has been a plus in terms of access to the court and there is a big push from some groups to keep this level of public access. During normal times, there are only about 50 seats reserved for members of the public to attend oral argument. And you'll see a big line outside of the court when a really high profile case like the DACA case comes through. And if you don't make it inside, you have to rely on media coverage of what happened. Or we have to track down a transcript of the argument or audio. And that could be hours or days after the argument. Another side note, the remote argument format has allowed us to hear much, much more from Justice Thomas, who usually stays silent during arguments. In my couple years of attending oral argument in person, I don't think I ever heard him ask a single question. Over the years, Thomas has offered several reasons for why he doesn't ask questions during in-person argument, which he says are too chaotic with everyone talking over each other. But he really appears to like the format of remote oral argument where he's the second justice to ask questions behind the chief and the justices aren't talking over one another. So what did we learn about Barrett's impact from this term's opinions in environmental cases? Did we see a bunch of six to three rulings, you know, conservatives versus liberals against environmental interests as some might have expected? The short answer is no. Although caveat that we did have two pretty big six to three conservative versus liberal rulings this morning. And on Arizona voting laws and California donor disclosure requirements. So those are fresh as of today. But again, we're talking about environmental cases here. The first case Barrett heard as a justice was Fish and Wildlife Service versus Sierra Club, which dealt with access to government records supporting a 2014 EPA rule on cooling water intake structures at power plants. Interestingly, farming and forestry industry groups that typically fight the Sierra Club in court aligned with the Sierra Club here. And they were calling. They were also calling for access to those records underpinning that EPA rule or not necessarily that rule. But they wanted access to records that could potentially inform stakeholders about how federal rules are going to affect their business. But the court in a 72 opinion led by Barrett said that Sierra Club couldn't get a hold of the records. There were a few unanimous opinions, which don't tell us a whole lot about Barrett's impact on the court, although the cases themselves were very important. There were a couple of interstate water wars between Texas and New Mexico and Georgia and Florida over river flows. Those cases don't tend to divide the court along ideological lines. I've noted both of those cases here as nine to zero. Texas and New Mexico was technically eight to zero, I believe, because Barrett wasn't on the court when that case was argued and she didn't participate in the decision. The court also issued a unanimous ruling in favor of Guam, which is a US territory in the Pacific. Guam was trying to sue the federal government for help paying with a really expensive cleanup of a former US military waste dump on the island. The US had said Guam had run out of time to make that request and the Supreme Court ultimately sided with Guam. This term, the closest the Supreme Court got to addressing climate change was in a case that really wasn't about climate at all, and this is that seven to one decision that's noted in the middle of this list on the slide. I'm going to do my best to give you all of the top line details of this case, which is BP versus Marin City Council of Baltimore, but it's pretty complicated. And if you're really interested in taking a deep dive on this one, you should check out Vermont Law School Professor Pat Parenthose hot topic last week that really dug in on this case and other climate liability lawsuits. So years ago, Baltimore sued BP and other companies in one of these climate liability lawsuits. I believe there's more than 20 of these cases nationwide. Baltimore, as other state and local governments have argued, says the oil companies owe the city money for the flooding and extreme storms and other impacts that has suffered as a result of climate change. They say, you know, oil and gas activity is a huge driver of climate change and companies should therefore have to pay. It'll be a long, long time before the courts really get to this issue of whether the oil and gas industry does in fact have to pay. First, the courts must work out where the cases will play out. Baltimore and other local governments have brought these cases in state courts. But, but, you know, because of that American electric power. And then I mentioned earlier about, you know, federal common law, the oil and gas industry wants these cases in federal court where, you know, a federal judge might say, you know, these issues are, you know, displaced by the Clean Air Act. Federal courts across the country have rejected the oil industry's arguments and send the cases back to state courts. So industry lawyers went to the Supreme Court and asked the justices to consider a very tiny procedural issue that would essentially give the companies a new shot at arguing for federal jurisdiction. The companies also slipped in an argument that said all of these types of cases should automatically land in federal court, where again, industry might stand a better chance of winning. The Supreme Court didn't take up that question. But in a seven to one ruling, the justices did agree to the industry's procedural request. The bottom line is that these cases can now go back to federal appeals courts for further proceedings. This adds significant time and cost for all the parties involved. And we're still nowhere near getting getting a definitive answer from the courts on whether oil companies can be held financially responsible for climate impacts. The decision is seven to one, not eight to one or seven to because Justice Alito didn't participate in the argument. He holds stock in Conoco Phillips, which is one of the companies involved in the case. There were also calls for Barrett to recuse herself due to her father's work for Shell, another one of the companies involved in the case. She didn't do that. And she voted with the majority in favor of industry's procedural argument. But you know, as you can see from the vote breakdown, she wasn't like the crucial fifth vote or anything like that. We did get six to three rulings into environmental cases. Cedar Point versus Hasid was a property takings case that resulted in a six to three opinion that divided the court along its ideological lines. So those six conservative justices versus the three liberals. The conservative wing sided with a California strawberry grower who said Union organizers had violated his property rights when they came on his farm to recruit workers. There was a six to three ruling in the big biofuels case, Holly frontier versus renewable fuels association, but it wasn't the six to three ideological breakdown you might have expected. It was the six men of the court versus the three women. The majority opinion, which was a rule, which was a win for small oil refineries said that they small refineries could claim an exemption, still claim an exemption to biofield blending requirements that the refineries said were too costly. And Barrett rejected that argument. And she wrote the dissent in that case. Another case with a with a bizarre lineup of justices. Justice votes was pennies versus New Jersey, which dealt with a natural gas pipelines ability to seize state lands in New Jersey to build its project in a five to four opinion led by Roberts, the court sided with pennies and Barrett actually led the dissent in that case, saying that she would have ruled against the pipeline. This case was a weird mix of, you know, ideological issues so on one side of the case you have a pipeline and on the other on the other side of the case you have, you know states rights which is another huge conservative issue. This case is additionally complicated because, you know, although the majority opinion here was pro pipeline legal experts say the decision could be good news for developers of transmission lines that could support renewable energy. So, again, a lot of information but the takeaway here is that the court under Roberts leadership is trying very hard to avoid a bunch of six to three ideological rulings. Again, we saw a couple today. So remote for the most part we saw these really interesting, you know, vote breakdowns where conservative justices are aligning with liberals and vice versa. I'll also note that the cases in the 2020 term weren't these blockbuster environmental battles that people were really worried about during Barrett's confirmation. Those cases are still to come. Another point here standing as you'll recall was another one of the major concerns about Barrett's nomination. The court hasn't weighed in this term on whether environmentalists have standing, but as a quick note, the court did just reject a challenge to the Affordable Care Act on standing grounds. The prior led the 7 to 2 opinion in this case, which said Republican led states did not have standing for their challenge against the Affordable Care Act. Barrett joined the majority opinion rejecting the state's standings. But it's not clear whether this case will have implications for environmental standing standing for environmentalists could come up with a Supreme Court. If the young climate activists involved in the Juliana versus United States case end up filing a petition later this year. In case you're not familiar with the dispute 21 young people, including Kelsey Rose Juliana, who's pictured in the foreground here, sued the federal government during the Obama administration, arguing that fossil fuel should be phased out in the interest of preserving a healthy climate for future generations. The case has gone through a lot of twists and turns, but the Ninth Circuit, which is a federal appeals court on the West Coast, said last year that while it was extremely sympathetic to the young challengers claims, the courts the courts weren't the right venue to resolve this climate question. They said that job falls to the political branches, meaning Congress in the White House. This was a big blow for the younger the young climate activists, you know, not only because it was a loss for them, but also because you know Congress as we discussed before seems unlikely to pass climate legislation and while the White House may address climate, that action could be challenged in court, and it also kind of depends on which administration is in place. Many environmental lawyers have said that the Ninth Circuit loss was the best outcome the young people could have hoped for, and to let the issue rest, rather than bringing the case to a conservative Supreme Court. But our children's trust the law firm behind the lawsuit has said they plan to move forward with a Supreme Court petition if it comes to that, and they still have some time before they have to file that petition. There are also some simultaneously some lower court proceedings in which the young challengers are asking a lower court for permission to narrow their argument in the hopes of getting, you know, kind of a fresh shot at this in the lower courts and to avoid going to the Supreme Court. There was a hearing on that issue I think last week. So that's still that's still going on. And that lower court judge has also asked the young people in the Biden administration to try to settle the case. The Biden administration, which like the Trump and Obama administrations before it has pushed back against these Juliana climate claims. And during that hearing last week that I just mentioned on that issue of, you know, the kids amending their original complaint. The Biden Justice Department raised the Supreme Court standing precedent in the Affordable Care Act case as an argument for why the kids involved in the Juliana case might lack standing for their climate for their climate claims. So, again, we'll see what happens with that. Another thing to watch next term is what the Supreme Court does with a new set of petitions from Republican led states and coal companies, asking the justices to reverse a DC circuit ruling right at the end of the Trump administration on EPA's carbon rule. The DC circuit ruling overturned the affordable clean energy rule what, which was Trump's regulation, essentially gutting the Obama era clean power plan. The states and coal companies are asking the Supreme Court to review EPA's authority, excuse me, to regulate greenhouse gas emissions like carbon dioxide. The justices haven't said yet whether they will take up the issue. Remember they don't take every case. But some folks are worried that this matter will be an attractive one to the conservative justices. And this has the potential to be one of the most important climate cases of our time if it does come up to the Supreme Court. Conservative groups also want the Supreme Court to examine sooner rather than later this ongoing question of which wetlands and water bodies are considered waters of the United States or voters subject to Clean Water Act regulation. The Obama administration had a broad voters definition. The Trump administration had a narrow one. Biden is expected to offer yet another definition. And eventually this will all be challenged in court. It has been challenged in court already, but it's just a matter of, you know, when it makes its way up to the Supreme Court. Conservative groups have said they think they might have the best shot at locking in a narrow definition like the one Trump favored if the issue comes before the current lineup of Supreme Court justices. So what is the court's future look like. There's a lot of anger from progressives about how Barrett's nomination was handled and Kavanaugh and Gorsuch's nominations before that. That nomination, again, was particularly controversial because, you know, it occurred right at the end of what turned out to be the end of Trump's term and during a general election, despite Republicans saying in 2016 that Obama couldn't put forward garland because, you know, the primary was underway in 2020 Republican lawmakers said, you know, this year's different from 2016, because in 2020, the White House and the Senate were in the control of the same political party. This term, it allowed them to get Barrett confirmed, but it has only deepened this increasingly partisan divide that we're seeing around judicial nominations. But as I mentioned before, despite this, you know, political fury, or maybe because of it, Roberts appears to be working really hard to keep finding the middle. And this term has shown that other justices like Kavanaugh and Barrett are willing to work for the middle to. So it's unclear, you know, what turn they'll take if these really big meaty environmental questions, you know, such as federal regulation of climate change make their way to the court in the coming years. There are also calls to add more Supreme Court justices to dilute Trump's impact on the court. The court has had more justices and fewer justices before in the past. The current number seems unlikely. Biden has convened a bipartisan commission to examine the federal court system overall. And we're waiting to see what comes of that. Breyer, who's now the court's oldest justice and one of the three remaining liberals is facing calls from progressive groups to step down while a Democrat is in office. Justice Ginsburg faced similar calls when Obama was in office. An opportunity to replace Breyer wouldn't give Biden the chance to shift the court's ideology, but it could help avoid an even deeper entrenchment of the current conservative majority. But justices are independent and they want to be seen as above the political fray, even if they're often right in the midst of it. This is what Breyer had to say about the matter during a lecture earlier this year. The public sees judges as politicians and robes, its confidence in the courts and in the rule of law itself can only diminish, diminishing the court's power, including its power to act as a check on the other branches. Before I close, I want to give a special thanks to Francis Chung, our photographer at E&E News, who took many of the photos I've used throughout this presentation, including this one here at the Supreme Court. Thank you all so much for listening this afternoon and thank you again Vermont Law School for having me here this summer. We do have a few minutes and we are going to take some questions from the audience as a reminder for those of you who are watching on our website live stream. You can click on the icon at the bottom of the video to bring up the big screen and chat box where you can log in to add your question there. Or if you are watching on our Facebook live stream, you can add your question to the comment box below and we will try to get through as many as we can in the time that we have left. Okay, so our first question that we have is, Pamela, what are you hearing about the likelihood of President Biden expanding the number of justices that sit on the Supreme Court? Yeah, that's definitely something that's being raised as one possible solution to kind of counteract this impact that Trump has had on the court. It seems unlikely that Biden would do it, but as I mentioned in the presentation, he has convened this bipartisan commission. And people have talked about that as an expansion of court as one possibility to result from that commission's analysis. Again, it doesn't seem super likely to me. Yes, thank you. Our next question is, Justice Roberts becoming the centrist of the court has been somewhat unexpected compared to what we heard when he was nominated. Are you seeing any trends that are surprising for the new justices that have been nominated by Trump? Well, like I said, according to those statistics from SCOTUS blog of how the justices, you know, were how many times they had voted with the majority during the current term. Kavanaugh is at the top. And he's followed right behind by Roberts and Barrett. There does seem to be this sort of like three justice voting block forming with Roberts and Kavanaugh and Barrett trying to find, you know, really the center of the court. They're all very pragmatic. But of course, Barrett still in her first term. So, you know, it's hard sometimes to get a real sense of someone right off the bat, and we'll learn more about her as she settles into the court. Thank you. Do you think the revised format for arguments and questioning during COVID? Do you think that that could result in different decisions than would normally happen in person? That's interesting. This isn't something I thought about a lot. My guess is that the court is, you know, determined to operate as much as, you know, business as usual as possible. In fact, you know, I'm sure there's a huge push among the justices to get back to in person arguments as soon as possible. Again, I really don't know. A lot of the court's operations really happen behind the curtain. But I do wonder if there's some of that, you know, negotiation and discussion between the justices that, you know, about cases that might, you know, be easier for them to do once they're in person again. Yeah, it'll be interesting to see. And maybe it's something that reveals itself over time, depending on whether or not, you know, these COVID policies remain in place versus going back to normal sooner than not. So I guess we'll have to wait and see with that one. All right, our next question is, do you have any takeaways about the temperament of this set of justices based on the cases that they have chosen not to take? Oh, that's interesting. Let me see if I can think of any in the environmental realm. No, but like I mentioned, it'll be really interesting to watch those petitions that I mentioned in the presentation about the DC circuits rejection of the Trump administration's affordable clean energy rule. If they don't take up that case, that could say something interesting. If they do take it up that could say something interesting as well. Yeah. All right, I think we have time for one more question. The question is, are there particular areas of environmental law that you think are more likely to be areas of agreement among the liberal and conservative justices? Yeah, I mentioned the pennies case during the presentation and how that was, you know, an interesting conflict between energy development and states rights. We see that a lot in some of the environmental cases, and that's often a way to sort of position an environmental issue, you know, such as the environmental cleanups case that I mentioned from the 2019 term. That was really about whether landowners could, you know, sue in the state courts for additional cleanup. And, you know, I think the Montana Supreme Court in that case, it said that the landowners could sue, if I remember bring all the details correctly. And so that's kind of like, that's a pro environment decision, but that's also, you know, a state powers decision, which the conservative justices are seemingly more likely to go for. Thank you. All right, it looks like we are out of time and need to wrap up today's talk so I want to thank you again Pamela for your presentation today and also for joining us on campus for the past two weeks. And thank you to our viewers who joined us today as well. As a reminder, the law school is closed next week for summer break and so we are going to take a pause from our hot topics lecture series next week. And we will be back on Tuesday, July 13 here at noon for our next talk and we hope that you can join us then. Thanks everyone.