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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.

Go deeper

Democrats fret about Garland for attorney general

Judge Merrick Garland. Photo: Bill O'Leary/The Washington Post via Getty Images

If Joe Biden picks Merrick Garland to be his attorney general, he could cost his party control of one of the most important judicial appointments in America — and many Democrats do not want the president-elect to take that chance.

How it works: Biden still hasn't named his choice to lead the Justice Department, and if he taps Garland, it would open up his seat on the D.C. Circuit Court of Appeals. If Democrats don’t win both Georgia Senate runoff seats next month, Majority Leader Mitch McConnell would almost surely prevent the president-elect from filling it.

Ben Geman, author of Generate
Dec 18, 2020 - Energy & Environment

What to make of the last members of Biden's historic energy team

Illustration: Aïda Amer/Axios

The last big names of nominees for Joe Biden's energy and environment team have arrived: Rep. Deb Haaland is the pick for Interior secretary, North Carolina environmental regulator Michael Regan is up for EPA, and Brenda Mallory's the choice to head the White House Council on Environmental Quality.

The big picture: They're first-of-a-kind picks. Haaland is the first Native American person tapped to run a cabinet agency, while Regan would be the first Black man to lead EPA, and Mallory would be the first Black person to head CEQ.

Dec 17, 2020 - Energy & Environment

Biden picks North Carolina environmental regulator Michael Regan to lead EPA

Biden delivering a speech on climate change in September. Photo: Drew Angerer/Getty Images

President-elect Joe Biden will nominate Michael Regan, the top environmental regulator in North Carolina, to lead the Environmental Protection Agency, a source familiar with the decision confirmed to Axios.

Why it matters: If confirmed by the Senate, Regan would be the first Black man to head the agency, which will be tasked with strengthening environmental standards after four years of the Trump administration's aggressive efforts to undo Obama-era protections.