Sep 28, 2020 - Energy & Environment

The Supreme Court's coming rightward shift on climate

Illustration of a gavel and sound block with an image of the earth on it

Illustration: Sarah Grillo/Axios

Amy Coney Barrett's likely ascension to the Supreme Court would affect climate policy beyond shoving the court rightward in the abstract.

Why it matters: If Joe Biden wins the presidential election, his regulations and potential new climate laws would face litigation that could reach the high court.

  • If Trump wins, ongoing cases over his dismantling of Obama-era policies could also reach SCOTUS.
  • Whoever wins, a court with a 6-3 conservative majority will issue rulings that undoubtedly have ripple effects.

Between the lines: Here are a few areas to watch...

1. Agency powers. Several analysts point to Barrett's writings that suggest support for "non-delegation doctrine," a legal theory that massively restricts how much power Congress can hand off to executive agencies.

  • A related area: She could take a narrow view of the "Chevron deference," or the idea agencies deserve running room when statutes are vague or silent on a topic.
  • Both matter when it comes to using the Clean Air Act to tackle global warming, because the 50-year-old law does not directly address the topic.
  • “Broad policy choices made by EPA to regulate greenhouse gases aggressively under the Clean Air Act are going to be met with serious skepticism,” says UCLA law professor Ann Carlson, who views Barrett's ascension as a potential tipping point on non-delegation doctrine.

2. Precedents. Carlson and others point to Barrett's past writings on stare decisis — the idea that past court holdings should be upheld — to argue that she's open to revisiting past rulings.

  • It's getting a lot of attention in light of Roe v. Wade, but it's also worth keeping an eye on Massachusetts v. EPA, the 2007 case that blessed federal regulation of planet-warming gases.
  • “She seems to be not fully wedded to the idea" of stare decisis, says Carlson, who believes it's plausible the ruling could be overturned, but stopped well short of predicting it.
  • Axios also asked Harvard Law School's Richard Lazarus about whether the more conservative court might upend Massachusetts v. EPA: "While the Court sometimes overrules it constitutional rulings, it almost never overrules its rulings on the meaning of federal statutes. I don’t think they would do it here."

3. Standing. E&E News writes that while Barrett's judicial record on energy and the environment is slender, she has taken a "narrow view of public interest groups' power to sue."

  • Carlson made the same point in our interview, and notes that a high court setting new limits on who's able to bring cases "could really upend the environmental movement."

Yes, but: “Her record is not deep on these questions, so we are to some degree reading tea leaves,” Carlson says.

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