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Climate Change Case Raises Recusal Questions Involving Justice Barrett

Mark Silverstone's picture
Principal, JMP Services AS

30+ years in Oil & Gas Industry Field of Interest: Environmental issues in general; waste management issues in particular. 

  • Member since 2002
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  • Jan 19, 2021

 Please see this article regarding the question of recusal by Justice Barrett in climate change court cases. The article can also be accessed here.

In addition to working for Shell from 1978 to 2007, Barrett’s father was a longtime member and twice head of the industry trade association, the American Petroleum Institute, which is an amicus party in the BP case.

The U.S. Supreme Court case BP v. Mayor and City Council of Baltimore has nearly two dozen oil and oil-related companies, including Shell, asking the justices to rule on an issue that eventually could allow climate change lawsuits against them to be litigated in their favored venue—federal courts—and not state courts. The court agreed to hear the case before Barrett was elevated as a justice in late October from the Chicago-based U.S. Court of Appeals for the Seventh Circuit.

It is worth watching this one.  So far, no indication has been given regarding whether or not Justice Barrett will recuse herself from this case. 

At stake is the possibility of oil and oil related companies and, perhaps more importantly, whether industry lobbying groups such as the American Petroleum Institute, can be sued in connection to climate change issues.

Generally, I am slightly skeptical of lawsuits against industries for climate change. Personally, I think the issues are quite different from, say, those against tobacco companies for health impacts from smoking.  But, I think it is important that the cases be brought and that we hear the arguments for and against liability. Obviously, the process will be tainted if one or more justices give the appearance of a conflict of interest.

Matt Chester's picture
Matt Chester on Jan 19, 2021

Agree with you on the core of whether this is a recusal case-- have there been equivalents in modern SC history where a justice recused because of a familial tie to a company/industry?

Mark Silverstone's picture
Mark Silverstone on Jan 21, 2021

Thanks Matt - Here is one study of the 180 recusals in the term ending in June, 2016.

"Thirty-three of the recusals were due to stock ownership in companies held by Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Samuel Al Alito Jr.,..."

"Fifteen recusals related to family ties of Justice Stephen G. Breyer, whose brother is a federal judge, and Justice Samuel A. Alito Jr., whose sister is a partner at K&L Gates."

You won´t be surprised to hear that the Supreme Court studiously avoids making hard and fast rules for recusals. From this article:

"For most judges in the United States, there are codes of conduct that regulate their behavior to avoid situations where judges impartially can be called into question, yet the justices of the Supreme Court are exempt from these conduct proscriptions."

Fortunately, Trump´s plan to have the Supreme Court keep him in office because of election issues was never put to the test!  

Matt Chester's picture
Matt Chester on Jan 21, 2021

Definitely seems like they've done the 'right' thing in the past, but these all sound like clearcut cases. Will be interesting to watch as 'gray areas' come up-- and with the SC being lifetime appointment so no voters or re-approval process to speak of in the future, the right thing will really be forced to come from within. 

Mark Silverstone's picture
Thank Mark for the Post!
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