“The future of the administrative state, in many respects, is on the line — and her refusal to answer basic questions about things like climate science makes me worry that we could see a whole dismantling of agencies that we have come to rely on for environmental protection,” she said.
Limits on administrative power would leave Congress with the task of being much more specific in drafting environmental legislation, Professor Gerrard said. “A very specific, well crafted law by Congress would be very hard for the courts to get around,” he said. Yet narrowly crafted laws don’t always adapt well to changing circumstances, as the years pass.
Leaving statutes vague, however, has been a way for Congress to finesse fights. A demand for specificity would make passage of environmental legislation even harder than it is now.
Judge Barrett’s family has strong ties to the fossil fuel industry.
Her father, Michael E. Coney, worked as a prominent attorney at Shell Oil in New Orleans and Houston for 29 years, from 1978 to 2007, focusing on deep sea exploration and drilling in the Outer Continental Shelf. As part of his work, he represented the oil and gas giant before the federal government, frequently dealing with the Department of Interior on royalties, regulations and compliance issues.
Mr. Coney was also an active member of the powerful oil and gas trade organization, the American Petroleum Institute, twice serving as chairman of its Subcommittee on Exploration and Production Law. On top of being the industry’s main lobby group, A.P.I. has played a critical role in casting doubt on climate science and opposing policies to address climate change.
Judge Barrett has previously recused herself from cases involving four Shell entities related to her father’s work. She has not recused herself from matters involving the A.P.I.
Stephen Gillers, a professor at the New York University School of Law, said Judge Barrett was likely exercising an abundance of caution in recusing herself from cases involving her father’s former employer. She would need to recuse herself, he said, if her father was ever a party to, or an acting lawyer on, a case before her — unlikely scenarios now that her father has retired. She would also need to recuse herself if a case required the court to evaluate or critique her father’s case work, which could mean he would have an interest in being exonerated, or having his work found appropriate, Professor Gillers said.