The Remaking of the Supreme Court: Implications for Climate Change Litigation and Regulation

Abstract

With Justice Amy Coney Barrett on the Supreme Court—following the confirmation of Justices Gorsuch and Kavanaugh—a 6-3 conservative judicial majority appears cemented for decades to come. While politicians, scholars, and the media have largely focused on what a Barrett nomination means for the Affordable Care Act and Roe v. Wade, the transformed Supreme Court significantly impacts a wide swath of environmental and climate change cases for years to come. It is increasingly clear that we have a generation—and no longer—to reduce our Greenhouse Gas (GHG) emissions and tackle the climate crisis. The President, Congress, and administrative agencies will need to take climate action. But what are the legal challenges to such action with the conservative shakeup? And how likely are they to succeed?

Justice Barrett’s record on the Seventh Circuit is not long, but her academic writing and rulings on judicial standing, the nondelegation doctrine, and agency deference may make it more difficult both for pro-environmental plaintiffs to establish standing and for President-elect Biden to pursue aggressive climate action independent of Congress via agency action and rulemaking. Barrett’s nomination follows President Trump’s successful appointment of Justices Gorsuch and Kavanaugh, both of whom have signaled a willingness to chip away at longstanding administrative law doctrines that have afforded agencies discretion in regulating GHG emissions. A transformed, 6-3 Court that replaces Justice Ginsburg with Justice Barrett has significant implications for the ability of Congress and the President to tackle climate change and other pressing environmental challenges—and for the ability of plaintiffs to address those challenges in court.

Keywords: climate change, Supreme Court, environmental law, administrative law, Amy Coney Barrett, standing, nondelegation doctrine, Chevron deference

JEL Classification: K1, K32, K3, K30, K10