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Predicting Amy Coney Barrett

On Saturday, President Trump nominated Amy Coney Barrett to the U.S. Supreme Court. A reporter with E&E News emailed our colleague Larry Liebesman for his reaction on how Judge Coney Barrett might rule in upcoming environmental cases.

What follows are excerpts from Larry’s response:

One of the things that strikes me most about Judge Coney Barrett’s environmental rulings is her reliance on stare decisis. Equally clear, she’s an originalist in the mold of Justice Antonin Scalia, whom she clerked for.

I was an attorney for Orchard Hill Development in its administrative appeal challenging the Army Corps of Engineers determination that 13 acres of wetlands at Orchard Hill’s proposed development were “jurisdictional waters” under the Clean Water Act (CWA) and subject to the Corps’ jurisdiction.

In 2018, the Seventh Circuit Court of Appeals, with Judge Coney Barrett on the 3-judge panel, vacated a District Court’s decision upholding the Corps of Engineers finding that Orchard Hill wetlands were jurisdictional under the CWA. Orchard Hill Building Co. v. Corps (No 17- 3403) (7th Cir. 2018)

As far as I’m aware, this is Judge Coney Barrett’s only Clean Water Act case. In reversing the District Court she followed Justice Kennedy’s “significant nexus” test as controlling law finding that the Corps did not provide sufficient evidence to meet Justice Kennedy’s test. The Judge followed Seventh Circuit precedent and did not take the opportunity to interpret Rapanos to favor Justice Scalia’s opinion based on a narrower “hydrologic connection” test.

The panel’s opinion also noted that no court has held that Scalia’s opinion was controlling.

If Judge Coney Barrett is confirmed to the Supreme Court, I suspect that she's likely to be respectful of existing environmental precedent, particularly given the Court's Maui ruling this year. But if a case comes before the Court involving what she perceives as government overreach related to the Kennedy “significant nexus” interpretation, I would not be at all surprised if she voted in favor of a more restrictive interpretation.


The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.


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