Welcome to the Climate before: newsletter. Please join us next week on Thursday for the latest episode of our virtual event series, Netting Zero. This panel, moderated by Somini Sengupta, our international climate reporter, will focus on solutions to reduce emissions in food systems. You can register here.
In the home stretch of a 90-minute insult-laden brawl that only occasionally veered into detailed political detail, Chris Wallace, the moderator for Tuesday night’s presidential debate, surprised: nearly 10 minutes of pointed questions on a subject that has almost never been addressed in any general presidential debate.
Climate change wasn’t even on the menu. Mr. Wallace had not included it in the list of topics to be discussed.
This fact has long been seen as a reflection of the perception by political campaigns that climate change is a side issue, a concern for niche environmentalists but not for the general public or crucial voters in swing states who decide on presidential elections.
Perceptions seem to have changed.
“Climate change is usually an orphan problem,” said Douglas Brinkley, a history professor at Rice University. “The fact that it was brought up last night shows that it is beginning to gain some of the national stature it deserves and is no longer a niche concern of the Democratic left.”
The questions asked by Mr. Wallace were pointed and precise, although the answers were less so. He pressed Mr. Trump to publicly state his specific views on the human contribution to climate change, to which he replied: “A lot of things do. To some extent, yes.
Mr Trump, as he has done before, spoke of his desire for “crystal clean air and water”, while failing to reconcile these with his administration’s cancellation of more of 100 environmental rules, many of which aimed to protect clean air and water.
The Biden administration’s environmental agenda
President Biden is pushing for tougher regulations, but faces a narrow path to achieving his goals in the fight against global warming.
Mr. Biden has sought to portray himself as a champion of renewable energy, while at the same time attempting to distance himself from the Green New Deal, even as that proposal informed his sweeping plan to spend $2 trillion on green initiatives, an idea that is likely to gain little traction in Congress.
“While it is great that climate change has been raised, it has been contaminated with insult-mania, with responses ricocheting all over the place and the public not having a clear vision of how we are going to attack this crisis,” Dr. Brinkley said.
“But it’s a good opportunity for the moderators to prepare for him to come back in the next two debates, to try to quiet the babble and get more coherent responses on climate change.”
What a Barrett judge could mean for the climate
President Trump has nominated Justice Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the Supreme Court, and if the Senate confirms her, that will mean a conservative supermajority of six. judges at court. It could significantly weaken efforts by government and environmental activists to fight climate change and clean up the environment, legal experts told me this week.
Judge Barrett, who currently sits on the United States Court of Appeals for the Seventh Circuit, has not written significant opinions on environmental cases that reveal her views, but “given that she comes of a very conservative tradition and calls herself a sidekick to Scalia, I think we can safely assume that she won’t be the most environmentally friendly justice,” said Ann Carlson, director of the Emmett Institute on Climate Change and the Environment at UCLA Law School.
Justice Antonin Scalia, who died in 2016, was a deeply conservative voice on the court for three decades. Judge Barrett served as one of his court aides. She is also a prominent member of the Federalist Society, a legal group that opposes what it sees as over-regulation and has been a source of conservative judges.
Professor Carlson suggested that Judge Barrett, if elevated to the Court, would follow Judge Scalia’s lead in interpreting the powers of the Environmental Protection Agency narrowly. If former Vice President Joseph R. Biden Jr. wins the presidential election in November and tries to use the environmental agency’s powers aggressively with new regulations, she said, “he could face headwinds at the Supreme Court”.
In that sense, Justice Barrett might also join conservative members of the court who have indicated that they might try to revive what is called the doctrine of non-delegation, a principle on the constitutional separation of powers which says that Congress shouldn’t give regulatory agencies much leeway in executing policies. The doctrine hasn’t been used to overturn any law or regulation since the 1930s, but “if you have six votes, I think that increases the odds” of it being reactivated, Prof Carlson said.
Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, said if this doctrine were revived, Congress would need to carefully draft legislation with very specific instructions for agencies to carry out. “It’s very unfortunate,” he said. “The more specific you are, the less you can cope with unforeseen circumstances” as an evolving understanding of environmental threats.
Professor Carlson suggested that Judge Barrett was also skeptical about a major element of lawsuits brought by environmental groups: standing to sue. Standing is the rules of who can sue, and Justice Scalia has long worked to narrow the rules to limit access to court for environmental groups. She called it “a pet project.” A Scalia sidekick might try to continue this work.
Still, Professor Gerrard said, don’t expect a conservative majority to overrule major precedents like Massachusetts v. EPA, which gave the environmental agency authority to regulate greenhouse gases under the Clean Air Act. Instead, he suggested, there could be “attacks on environmental regulations from multiple angles” that would weaken the law without the uproar of a sweeping decision.
“It’s like a swarm of ducks pecking at a small animal,” he says. “They may not kill him, but they leave him limping and bleeding.”
We would love to hear your comments on this newsletter. We read every message and respond to a lot! Please email your thoughts and suggestions to [email protected].