Event Recap

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Many of the most consequential decisions affecting U.S. energy and environmental policy over the past decade have been made by the Supreme Court. The incoming Biden administration has made clear that it plans to put climate change front and center across its agenda, suggesting that these issues will not fade from public view or the SCOTUS docket.

In addition to cases about Biden’s policies, the Court’s newly strengthened conservative majority may also soon see challenges to past landmark environmental cases such as Massachusetts vs EPA, which made climate action the responsibility of the executive branch and empowered states and others to sue the federal government if it fails to act. The Court may also be asked to hear arguments on foundational administrative decisions such as the “Chevron doctrine,” which gives agencies leeway to interpret laws.

How likely is the Court to hear such challenges? What are the possible impacts of overturning these precedents? And what role might the court play in constraining climate progress in the Biden Administration?

To explore these questions, EPIC and the Abrams Environmental Law Clinic at the University of Chicago Law School hosted a conversation with Cass R. Sunstein, former Administrator of the White House Office of Information and Regulatory Affairs under President Obama and a leading expert on constitutional law and energy and environmental policy, and University of Chicago Assistant Professor of Law Hajin Kim, who clerked for Justice Ruth Bader Ginsburg. The conversation was moderated by The Atlantic’s Robinson Meyer, EPIC’s journalism fellow.

Sunstein, who is the Robert Walmsley University Professor at Harvard University, began by discussing the legal components of several major policies from the Obama administration: fuel efficiency standards, energy efficiency standards for appliances and the Clean Power Plan.

“The upshot of all this is that there’s a bit of an obstacle course for the Biden administration to run,” said Sunstein. “The good news is we know where each of the bodies are buried in the sense that we know where each of the obstacles is. It’s a little like an obstacle course, and you can see all the walls and know how high they are to jump over.”

When Meyer asked if the walls were too high to make substantial emissions reductions, both Sunstein and Kim agreed that some of the policies would have a harder time than others. Fuel economy standards was a policy they thought, as Sunstein put it, “would almost certainly be okay.” Energy efficiency standards they also thought would be fine. But the Clean Power Plan both Sunstein and Kim said faced the most difficult course.

“It’s going to be a hard, hard uphill battle,” said Kim, who researches environmental law and firm behavior. “I think it’s worth fighting and I think part of the reason it’s worth fighting is because a lot of times what happens in the history of these regulations is the administration comes out with a regulation, industry protests that it’s way too hard, way too harsh. We can’t do this. But then as they’re litigating it, they start to comply with it anyways. And if that happens, then that’s what you want, even if the regulation ends up getting curtailed later in the process. So I think litigation risk might be different from market signaling in terms of what the Biden administration chooses to do.”

Meyer asked Sunstein and Kim how they would proceed if they were the Biden administration, given the makeup of the court. Sunstein brought up the Social Cost of Carbon as one policy that needs updating because it is foundational to much of the regulatory work.

Rejoining the Paris Accord, confronting fuel efficiency and energy efficiency standards and reducing emissions from existing power plants would also be important, Sunstein said.

Kim pointed out that along with updating the social cost of carbon it would be important to put more attention on science and basic research, which had been gutted by the Trump administration, she said.  Kim acknowledged that there is bipartisan support for an ARPA-C, an office focused on climate mitigation, adaptation and resilience research. This focus on adaptation and resilience could be a way of bringing more people into the process and building support for climate policy.

“You want the Biden administration to focus on, as Professor Sunstein mentioned, the things that are going to have the biggest impact on climate, so things like cars, but you also need to get people to understand how important this issue is, because ultimately, you need to keep building on the sort of political movement behind climate. I think working on things like resiliency and adaptation can help,” Kim said. “Farmers are aware that climate change is happening and may want to be part of the solution. That’s part of the Biden platform.”

To wrap up the conversation, Meyer asked how big of an impact a change or revoking of the “Chevron doctrine” would have on climate policy.

Sunstein explained “The Chevron principle says, ‘Where a statute is ambiguous, the agency’s interpretation prevails, so long as its interpretation is reasonable.’ So everyone agrees that if a statute is not ambiguous, the agency has to follow it. And everyone agrees that even if the statute is ambiguous, the agency can select an unreasonable interpretation.”

He gave some historical context to explain that the doctrine is not a politically left or politically right principle. Sunstein pointed out that despite the Chevron doctrine the Bush administration lost the case under Massachusetts vs. EPA that the Clean Air Act couldn’t regulate greenhouse gases, while the Obama administration lost a case involving mercury on the grounds that the court found the agency’s interpretation was unreasonable because the agency didn’t consider costs.

“If Chevron is overruled or cabined, and I think it’s highly likely to be cabined and it’s potentially going to be overruled, it would matter but it’s not life and death stuff, with respect to climate change regulation,” Sunstein said. “Because remember our two principles: Fidelity to law, everyone agrees with, whether they like Chevron or not, and deliberative democracy, everyone agrees with whether they like aggressive regulation or not.”

Areas of Focus: Climate Change
Climate Change
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Climate Law & Policy
Climate Law & Policy
As countries around the world implement policies to confront climate change, EPIC research is calculating which policies will have the most impact for the least cost.
Abrams Environmental Law Clinic
Abrams Environmental Law Clinic
The Abrams Environmental Law Clinic attempts to solve some of the most pressing environmental problems throughout Chicago, the State of Illinois, and the Great Lakes region.