Author ORCID Identifier

0000-0001-9690-0326

Document Type

Article

Publication Date

2021

Keywords

Climate litigation, Amy Coney Barrett, Supreme Court, Article III standing, Clean Water Act, Nondelegation doctrine, Agency authority

Abstract

With the nomination of Judge Amy Coney Barrett, the Supreme Court is a Senate vote away from a historic shakeup that will cement a conservative judicial majority for decades. 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 confirmation of Barrett would significantly impact a wide swath of environmental and climate change cases for years to come. As the Supreme Court is on the brink of a generational transformation, it is increasingly clear that we have a generation—and no longer—to reduce our Greenhouse Gas (GHG) emissions and tackle the climate crisis. Regardless of the winner of the 2020 presidential election, the President, Congress, administrative agencies, and litigants will need to take climate action.

Judge 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 will likely make it increasingly difficult both for environmental plaintiffs to establish standing and for federal agencies to regulate GHG emissions. 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.

First Page

2911

Publication Title

Cardozo Law Review

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