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Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmation hearings on Capitol Hill, on October 14, 2020. | Jonathan Ernst/Getty Images

Barrett will increase a majority dedicated to limiting the administrative state.

Amy Coney Barrett’s likely confirmation to the Supreme Court to replace the late Ruth Bader Ginsburg in a final Senate floor vote on Monday will add a conservative sixth vote to an already-conservative majority, with potentially far-reaching implications for American law. Barrett’s confirmation will scramble the current distribution of power on the Court, displacing the chief justice as its putative center and pulling it rightward.

Most legal commentators expect that Barrett’s judicial philosophy of originalism and her advocacy of a more “flexible” approach to precedent will make her more likely to vote to overturn precedents like Roe v. Wade. Barrett also believes that judges should interpret statutes in accord with their “original public meaning,” a strict brand of textualism that tends to constrain agency regulatory power.

What can we predict about Barrett’s likely attitude toward environmental regulation, and climate change in particular? Would she vote to overturn Massachusetts v. EPA, the Court’s 2007 landmark holding that the Environmental Protection Agency may regulate greenhouse gases under the Clean Air Act? Would she vote to uphold the Trump administration’s rescission of the Obama-era greenhouse gas standards for the power sector, and its ambitious greenhouse gas and fuel efficiency standards for cars, and uphold the administration’s far weaker rules?

What of the administration’s legal theory that when setting power plant standards, EPA cannot consider grid-wide strategies like substituting natural gas for coal, even though Congress told the agency to use the “best system” of emission reduction? Or the administration’s theory that federal law preempts California from setting its own vehicle greenhouse gas standards, and, separately, that EPA can revoke California’s current waiver to set those standards? Would it be more difficult for a new Biden administration to adopt ambitious greenhouse gas rules with Barrett on the Court?

 Bonnie Cash/Getty Images
Supreme Court nominee Judge Amy Coney Barrett leaves after testifying before the Senate Judiciary Committee on the third day of her confirmation hearing on Capitol Hill on October 14, 2020.

Barrett’s record on environmental issues is thin, so her views are a matter of speculation.

Outcomes in particular cases turn on the facts, the administrative record, and the quality of advocacy. Yet it seems fair to say that Barrett’s addition to the high court will cement a trend, already underway, to restrict the modern administrative state.

A further tilt of the Court in the direction it is already going — skeptical of expansive regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind — certainly won’t help the cause of environmental protection or public health.

Taming the government beast

A majority of justices on the Court already are wary of the “behemoth” that is the US administrative state, with the most pronounced antipathy coming from another relatively new addition, Justice Neil Gorsuch, who has argued passionately that agencies must be reined in. To greater or lesser extents, Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Chief Justice John Roberts have all warned of the dangerous accretion of administrative power. (Such views have gained traction in Congress too. In Barrett’s confirmation hearings, Republican Sen. John Kennedy fulminated against the administrative state, calling it a “rogue beast.”)

This attitude, which her record and judicial philosophy suggest Barrett may share, makes it less likely that the Court will defer to administrative agencies like EPA when they pursue expansive regulation.

In theory, the Supreme Court still adheres to the general principle that courts should defer to agency interpretations of vague statutory provisions, providing they are reasonable. Known as Chevron deference, this principle assumes that Congress intends expert agencies to resolve statutory ambiguities in the first instance. But the Court has been taking a narrower view of Chevron — finding that it applies in fewer and fewer instances to a smaller scope of cases, and certainly not in the big cases where the agencies are doing ambitious things.

In particular, the Court is disinclined to give agencies much leeway to apply old statutes to new problems, even when those statutes are broadly worded. The Court increasingly prefers to send questions of major economic and political importance back to Congress for clearer instructions. While sensible-sounding on its face, this approach overlooks the possibility that Congress already did speak, when it gave the agency broad power in the first place.

All of this is to say that even before Barrett’s confirmation, the Court was growing more miserly about deference, and especially skeptical of far-reaching rules with big consequences that rely on new legal interpretations, like the Obama-era Clean Power Plan.

Barrett subscribes to a brand of textualism that looks askance at exertions of agency authority not rooted in explicit statutory text, which seems to align her with the major questions canon. Given the difficulty of passing new legislation, especially in an era of hyperpartisanship, the systematic application of this canon to send matters back to Congress is a one-way ratchet to regulatory stasis.

 Mario Tama/Getty Images
Supreme Court Justices Neil Gorsuch (L) and Brett Kavanaugh attend the State of the Union address in the chamber of the US House of Representatives on February 4, 2020.

A majority of the Court also seems open to reviving the “non-delegation” doctrine, a constitutional principle that limits Congress’s ability to grant broad powers to agencies. The Court has not struck down a statute on this basis in 85 years, but just last year, three justices indicated their willingness to do so, and Alito said he would join them if a fifth vote could be found. Barrett, whose constitutional originalism might well align with a strict view of non-delegation, could provide the fifth vote. (So might Kavanaugh, who was not yet seated when the case was argued.)

Barrett’s views on standing seem restrictive. She has authored several opinions denying standing to plaintiffs for lacking a concrete and particularized injury. Her brand of constitutional interpretation and close embrace of Justice Antonin Scalia’s judicial philosophy suggests that she would look more skeptically at permissive standing rules, certainly more than Justice Ginsburg did. For example, a Justice Barrett likely would have sided with the dissent and voted to deny standing to the petitioners in Massachusetts v. EPA.

Raising the bar for standing would make access to courts disproportionately harder for environmental plaintiffs, because they often seek review for widely shared or indirect harms, and frequently ask the court to remedy agency underregulation. By contrast, industry can always get standing for direct economic harms, to air their grievances about overregulation.

Barrett has praised Scalia’s approach to the Affordable Care Act, which he found unconstitutional under the commerce clause. That could spell trouble for certain environmental statutes, like the Endangered Species Act, which has been challenged repeatedly as insufficiently related to interstate commerce. Lower courts consistently have upheld the act, but the Supreme Court has not ruled on its constitutionality. At a minimum, Barrett is expected to endorse Scalia’s narrow view of EPA’s authority over wetlands under the Clean Water Act.

On the particular environmental law cases that people wonder most about, these are my best guesses about the difference Barrett will or won’t make: It is unlikely the Supreme Court will overturn Massachusetts v. EPA, since the Court tends not to overturn precedents about statutory interpretation, although it seems likely that Barrett would have voted differently than Ginsburg did in that case. (And indeed, if Massachusetts were relitigated today, with the Court’s current lineup, it likely would come out the other way.)

But the Court does not need to overrule Massachusetts to cabin EPA. It can simply read EPA’s regulatory power narrowly, as I argued above. Barrett’s vote is not decisive on that score — the Court was headed in that direction already.

 Stefani Reynolds/Getty Images
Senate Majority Leader Mitch McConnell wears a protective mask as he stands in an elevator at the US Capitol on October 20, 2020, in Washington, DC.

Barrett’s impact on a Biden climate plan

On the pending litigation over Trump’s regulatory rollbacks, like the power plant and fuel efficiency standards, there are a lot of remaining “ifs.” If Joe Biden wins the presidency, his Justice Department will ask the courts to hold those cases in abeyance until the agencies can reconsider the underlying rules. Presumably, a President Biden would want to reverse the Trump reversals and pursue a more ambitious greenhouse gas regulatory program.

It will be somewhat harder now for a president to use the Clean Air Act aggressively to set climate policy. But even before Barrett’s nomination, it’s not as if the Biden campaign, or the environmental advocacy community, was thinking that the Supreme Court would be a sympathetic forum for far-reaching climate rules.

Even so, there is plenty a Biden administration could accomplish using EPA’s and other agencies’ existing legal authority, just by restoring and strengthening the rules the Trump administration has gutted — for example by setting strong standards for power plant carbon dioxide, methane emissions, fuel efficiency, appliances, and the like. A lot of progress can be made without embracing the riskiest legal positions, because technological advances and market conditions have shown what industry can achieve, which provides a sound basis for ambitious standards.

Biden has pledged to pursue legislation in tandem with using executive power to tackle climate change. There is no question that to achieve his goal of net-zero economy-wide emissions by 2050, Congress will need to legislate.

What if Trump wins?

If President Trump wins reelection, the litigation over EPA’s regulatory rollbacks will play out and could reach the high court. With Barrett’s vote, it is incrementally more likely that the Court would endorse the Trump administration’s cramped view of EPA’s authority to regulate existing power plants. Reversing that decision would then require Congress to amend the Clean Air Act, which the Democrats could do if they retain the House and flip the Senate, especially if they jettison the filibuster rule for legislation, as has been done for judicial appointments. Congress would need a two-thirds vote to override a Trump veto.

It is less clear that the Supreme Court would endorse the Trump administration’s theory that California is preempted from setting vehicle greenhouse gas standards by the energy conservation law that assigns fuel efficiency to the Transportation Department. Preemption cases involve delicate questions of state and federal power, and conservative justices sometimes depart from their strict textual tendencies in resolving them.

The Supreme Court already opined, in Massachusetts v. EPA, that fuel efficiency and greenhouse gas standards are legally distinct and can live harmoniously together — and the Obama administration demonstrated that they could. But if the Court did find California preempted, new legislation would be needed to reverse that holding.

The Court could take an alternative route and uphold EPA’s revocation of California’s waiver on the theory that climate change does not affect California uniquely or create “compelling and extraordinary conditions” in the state. Fixing that decision would not require Congress, though; a new administration could simply issue a new waiver.

Much will turn on how the Court decides these legal questions, if it decides them. Depending on the reasoning, a future president might still have flexibility to reverse course.

 John Lamparski/SOPA Images/LightRocket via Getty Images
Demonstrators wearing face masks hold placards calling on Congress to suspend the Supreme Court confirmation process at Freedom Plaza in Washington, DC, on October 17.

In each case, the Court would also evaluate whether the Trump administration’s weaker standards are rational and sufficiently supported by the administrative record. On such questions, a Justice Barrett, along with a majority of the Court, might well reject the rules, which rest on tenuous scientific and economic arguments. Even conservative judges bristle at shoddy agency work, which no one has done more of than the Trump administration. Still, it is not clear that Barrett’s vote would change the outcome in any particular one of these cases.

If Supreme Court nominations are a mood, however, the mood for EPA is grim. In truth, it has been growing grimmer since Gorsuch filled Scalia’s seat and Kavanaugh replaced Justice Anthony Kennedy. The Court, with Barrett as a reliable fifth or sixth vote, is now more likely to take an especially problematic combination of views: a cramped view of agency authority when an agency seeks to regulate; a permissive view of agency authority when an agency seeks to deregulate; a restrictive view of Congress’s power to delegate; a more skeptical view of Congress’s commerce clause power; and a narrower view of constitutional standing. That conservative blend does not bode well for the modern regulatory state — certainly not for environmental regulation.

Justice Ginsburg wrote several important environmental law decisions, including EME Homer, upholding EPA’s innovative market-based strategy to control interstate air pollution, and AEP v. Connecticut, reinforcing EPA’s authority to regulate greenhouse gases under the Clean Air Act. She was not an environmental law hero like Justice William O. Douglas or Justice John Paul Stevens, the author of Massachusetts v. EPA, but she was open to the idea that achieving the broad purposes of environmental law requires EPA to have some flexibility.

We will miss her vote, and her voice. Barrett’s will be very different.

Jody Freeman is the Archibald Cox Professor of Law and director of the Environmental and Energy Law Program at Harvard Law School, and a leading scholar of administrative law and environmental law.


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Author: Jody Freeman

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