How Big a Threat Is the Supreme Court to Biden’s Climate Agenda?

President Biden will rely upon regulatory agencies like the EPA to push his ambitious clean energy and climate agenda. Yet increasingly conservative courts could stand in the way of Biden’s plans.

President Joe Biden has set an ambitious clean energy and environmental agenda that includes a $2 trillion infrastructure and climate plan, and a renewed commitment to the Paris Climate agreement. To achieve his climate goals, Biden is likely to rely on regulatory agencies, such as the EPA, to craft rules to limit the climate impact of the country’s energy, transportation, and related industries.

Yet Biden’s need for new, climate-focused rules arguably couldn’t come at a more inopportune time. New regulations often face legal challenge in the nation’s courts. The most prominent of those courts, the Supreme Court, has turned increasingly conservative, and many legal experts expect it to be generally less supportive of environmental regulations argued before it.

On the podcast, Cary Coglianese, director of the Penn Program on Regulation at the University of Pennsylvania Carey Law School, explores the challenge that a conservative Supreme Court may pose for President Biden’s clean energy and climate agenda. Coglianese also looks at how the legal philosophies of the court’s newest conservative members might guide their decisions on climate-related issues.

Andy Stone: Welcome to the Energy Policy Now podcast from the Kleinman Center for Energy Policy at the University of Pennsylvania. I’m Andy Stone. President Joe Biden has set an ambitious clean energy and environmental agenda that includes a 2 trillion-dollar infrastructure and climate plan and a renewed commitment to the Paris Climate Agreement. To achieve his climate goals, Biden will likely rely on regulatory agencies such as the EPA to craft rules to limit the climate impact of the country’s energy, transportation and related industries.

Yet Biden’s need for new climate-focused rules arguably couldn’t come at a more inopportune time. New regulations often face legal challenges in the nation’s courts. The most prominent of those courts, the Supreme Court, has turned increasingly conservative, and many legal experts expect it to be generally less supportive of environmental regulations argued before it. On today’s podcast, we’ll explore the challenge that a conservative Supreme Court may pose for President Biden’s clean energy and climate agenda. We’ll also take a look at how the legal philosophies of the Court’s newest members may guide their decisions on climate-related issues.

Today’s guest is Cary Coglianese, Director of the Penn Program on Regulation at the University of Pennsylvania Law School. Cary has served as a consultant in the past to the U.S. Environmental Protection Agency and the Department of Transportation. Cary, welcome back to the podcast.

Cary Coglianese: Thanks, glad to be here, Andy.

Stone: So Cary, it’s April of 2021, and President Biden has just released his 2 trillion-dollar legislative agenda on infrastructure and climate change. Now, nevertheless it’s pretty sure that not all of Biden’s work on climate will go through the legislative process, meaning Congress. So that said, can you put into perspective the role that regulation and regulatory agencies like the EPA are likely to play in the President’s effort to address climate and energy concerns?

Coglianese: Sure. The President has announced and is pursuing what he calls an “all-in government approach to climate change.” Basically that means that he’s looking for every possible lever that can be used to deal with the problem of climate change. And that has a number of different dimensions to it. Obviously we’re dealing with a global pollutant and a global environmental problem, so international action is needed, and the U.S. rejoining the Paris Climate Accord is an example of an international action the Biden administration is taking, but there is also a domestic dimension. What do we do in the U.S.?

And then with respect to what’s going on in the U.S., we have to keep in mind that there’s both mitigation efforts to reduce the release of greenhouse gas emissions, and there’s a host of actions to take on adaptation or resilience, as well. And then there are actions, as you say, that Congress can take, versus agencies. And then there are actions that involve spending money, subsidizing, versus regulating. And yes, that last category, regulation, which will be possibly pursued by Congress. That’s something that can happen. But if Congress is unable to adopt new regulatory limits on greenhouse gas emissions, then most of the regulatory action will be done within the agencies, whether it’s various energy efficiency standards out of the Department of Energy or various emissions limits and the like out of the Environmental Protection Agency. It’s a portfolio approach, and so regulatory levers are going to be an important part of the overall agenda in the Biden administration, but we probably can’t meet the kinds of emissions reductions needed just through regulation alone. So that’s why the administration has taken this more “all-in” government approach.

Stone: Now here’s a historical fact — that aggressive environmental regulations like those that we might expect to see out of the Biden administration frequently face legal challenge in the nation’s courts. Historically, to what degree has the Supreme Court in particular been accommodative of environmental regulations?

Coglianese: Well, I think the Supreme Court obviously is critical, as the highest court and the ultimate arbiter of the lower courts. The track record of the Supreme Court has largely, I would say, been deferential to environmental regulations, in large part because these regulations have been authorized by Congress. During the 1970s, what’s often thought of as the “environmental law decade” in the United States, we’ve had a dozen or more major environmental statutes adopted by Congress which contain within them authorization — sometimes even mandates — that EPA adopt regulations.

So the courts are charged with applying the law that Congress has adopted, and when we have a large body of environmental statues, then the courts have certainly by and large been rather deferential. Now that’s not to say that there haven’t been challenges and obstacles. For many of the most significant environmental regulations over the years, courts have figured in, in one way or another. But the other thing is, and this follows from a recent article that I published with Dan Walters of Penn State University, we looked back at 50 years of EPA rule-makings in the courts and found that there has been a striking continuity over the years that the federal government ultimately prevails. And even in the case where it doesn’t, research indicates that the EPA is able often to go back and have essentially a re-do and re-implement regulations that courts initially disapproved of in some fashion.

Historically, the Supreme Court has been rather deferential to agency action in general, and to EPA action, but in large part that’s because the statutes have really authorized and even provided the impetus for that regulation that EPA has conducted. The challenge and the interesting questions in the climate area arise because we don’t have a dedicated, squarely-targeted piece of federal legislation devoted directly to and very clearly to the climate type of problem.

Stone: That’s interesting. I read that paper. One thing that you did point out again is that the courts have generally been deferential to the agencies, but during the Trump administration, that changed a bit. Is that correct?

Coglianese: Well, yes. The courts did disapprove a good number of actions that the Trump administration took, and I guess I have to probably elaborate and clarify a little bit when I say the courts have been somewhat deferential. At the end of the day, the EPA has been able to prevail in much of the litigation that has been filed challenging its rules. But that’s largely because the EPA has done its homework over the years, and it has made sure that it follows proper administrative procedures which are required by law. It has made a considerable investment in policy analysis, in economic analysis, in scientific analysis to make sure that its rules are well grounded in evidence. It has done its homework.

One of the issues that arose during the Trump administration is when the courts looked at what the EPA had done, a lot of the work that the agency had done under the Trump administration had been rather slipshod, so it’s not so surprising that courts did reject certain actions taken by EPA during the Trump years. One thing we know generally is that the Trump administration had a harder time filling positions. Certainly at EPA, there was a scandal. I think when you and I spoke on a podcast about Scott Pruitt and the scandal surrounding the EPA in the early years of the Trump administration, for example, it took quite a while before the agency recovered from that, developed work patterns that developed a more solid, at least, record for what they were doing. And a lot of the major actions taken by the Trump EPA under Administrator Wheeler were issued in the latter part of the administration and are still pending review in the courts.

So overall, the courts have expected agencies to do their homework. When EPA has done it and done it well, the courts have looked generally favorably on what the agency has done — obviously scrutinizing it. And that’s one of the reasons why EPA has, over the years, done its homework because they anticipate that anything that they produce might end up in court, and so they want to make sure that the i’s are dotted, and the t’s are crossed.

Stone: So let’s go ahead and put this into perspective. As you mentioned, the Supreme Court has generally been accommodative of regulations out of the executive agencies such as the EPA. But today we have a situation where we’ve got a new president who has vowed to be quite aggressive on the climate clean energy front. He’s going to use regulation to get some of his agenda through, but at the same time, he’s now facing a Supreme Court which is more conservative than any Supreme Court in recent memory. It’s got a 6-3 conservative majority, that’s up from a recent 5-4 majority, which we had for quite a number of years. How much does this 6-3 majority add to the potential power and barriers that the Supreme Court might pose to Biden’s agenda?

Coglianese: Well, it’s a matter of numbers. You need a majority to decide a case on the Supreme Court, and when the Court had just a 5-4 conservative majority, Justice Kennedy could, in many cases — and this is probably even more true outside of the environmental realm — serve as a swing justice. But we also know, for example, that in other pivotal cases, such as when the Affordable Care Act went to the Supreme Court, Justice Roberts provided a pivot point, a governor of control or limitation, if you will, on the conservatives’ power, if he was willing to take a different kind of,  more moderate position.

That said, under the older Supreme Court, with a 5 to 4 majority, there was some indication that even in the latter part of the Obama administration, that the Supreme Court was going to scrutinize climate regulation much more carefully. So four days before Justice Scalia died, the Court handed down a stay, which is an interim halt, if you will, on EPA rule-making dealing with climate issues. The Clean Power Plan, in fact, was in some sense the signature regulation of climate matters under the Obama administration. The Court in February, 2016 halted the implementation of that regulation, pending further review in the courts.

Now it was an initial, preliminary decision, but it was striking because it was unprecedented, unprecedented that the Supreme Court would put a halt to an agency rule when the lower courts, which were still hearing the legal challenges to the Clean Power Plan, had actually declined to put a halt on the rule. What are the implications of that? Well, there was a requirement under the Clean Power Plan that states start to develop plans to put some limits on electric utility carbon emissions. And if you halt that, basically it means the states didn’t have any obligation to get working on those plans until the courts actually settled the legal issues.

So it was an unprecedented decision for the Supreme Court to step in and put a halt pending litigation on a regulation, when the lower courts didn’t even see a need to put a halt on it. And not only was it unprecedented, but I think it was a clear signal that the majority on the Supreme Court had some issues with the Clean Power Plan and were likely not to look too favorably on it if the rule ever reached the Court for decision. Now it didn’t, because something else happened in 2016 — an election. And President Trump came in office, and his EPA withdrew the Clean Power Plan, replaced it with a new rule dealing with emissions from electric utilities, and that itself has been under challenge.

I think what we’ll likely see is the Biden administration revisiting the Trump rule. I would be surprised if they just reinstate the Clean Power Plan. They may be a little different in certain respects. There were some legal vulnerabilities that the Clean Power Plan had, and if a majority of the Court in February, 2016 was suspicious of the Clean Power Plan and issued that stay, well, I think the Biden administration is smart enough to know that if they just reinstated the Clean Power Plan as it was, now with a 6 to 3 majority, they’re not likely to get a more favorable airing at the Supreme Court. You know, it remains to be seen exactly how the current 6 to 3 Court will rule on some of these regulatory matters. Again, if there is strong —

Stone: There are new justices, right?

Coglianese: There are new justices, right. So we have Justice Scalia having been replaced by Justice Gorsuch, Justice Kennedy having been replaced by Justice Kavanaugh, and then the late Justice Ginsburg being replaced most recently by Judge Coney Barrett. We do know that from the judicial record that Justice Gorsuch and Justice Kavanaugh have taken some positions that would have some serious implications for the state of administrative law, the law that governs what agencies like EPA does. Justice Coney Barrett is a little bit less sure. Obviously she is someone who is a protégé of Justice Scalia, but we don’t know whether she’s more like the earlier Justice Scalia, who was accommodating the administrative state and to agencies like the EPA in many ways, or more like a more skeptical Justice Scalia in the years shortly before his death, where perhaps she would be much more aligned with Justice Gorsuch and Justice Kavanaugh in some of their skepticism of the administrative state.

So it’s a bit of a wild card, but certainly 6-3 from the standpoint of environmental regulation is qualitatively different than a 5-4 Court, again because now one justice has a little bit less sway than they may have had in the past.

Stone: You don’t get that obvious swing vote in the same way when you have the 5-4 Court.

Coglianese: Right. Exactly.

Stone: Before going forward here, I just wanted to swing back to something you’d mentioned. You’d mentioned the Supreme Court and the stay of the Clean Power Plan, which was unprecedented. It hadn’t even been decided yet by the lower courts. Trump made over 230 appointments to courts during his presidency, courts around the country. Do these other courts, or are there specific courts beyond the Supreme Court that we should really be thinking about as well, that may be important to the regulatory agenda of the Biden administration?  

Coglianese: Sure, the Supreme Court is nine justices, and they hear between 75 to 100 cases, perhaps, in a given year. And there are 4,000 regulations that the federal government roughly is issuing in any given year, the EPA issuing hundreds of regulations. Now these don’t all get challenged in court. Most of them don’t. Most of them are not terribly controversial, but certainly if not all the cases can get decided by the Supreme Court, then the lower courts and their decisions become the final say if the Supreme Court is not taking up those cases. So certainly that matters a lot.

You also should keep in mind that there’s, in recent years, a very active litigation strategy being pursued by state attorneys general. The states are roughly split, with about half of the states having Republican attorneys general, and the other half of the states having Democratic attorneys general. And the reality is that these attorneys general are willing now to pursue litigation, whether it was the Democratic attorneys general banding together to challenge the rules issued by the Trump administration, or what would be likely now, the Republican attorneys general coming together to challenge rules of the Biden administration. And that’s in addition, of course, to industry groups, environmental groups who have long been active litigants challenging EPA rules.

So the lower courts are where a lot of the decisions are made. Certainly they’re not final if the Supreme Court wants to take up a case, but the Supreme Court doesn’t take them up all that often. And if nothing else, that litigation in those lower courts is important going forward, just for the Biden administration to realize that it can delay things. So it can take a year, two years perhaps to have a case litigated. Now it should be noted that it doesn’t usually require that this kind of litigation go through what we would see in most civil disputes — a trial first with a jury or anything like that, and then an appeal. Most of the environmental regulatory disputes will go directly to the Court of Appeals and be decided there.

Stone: Such as the D.C. Circuit?

Coglianese: The D.C. Circuit is, indeed, the court that has what we call “mandatory venue,” that is, you have to go there under many environmental statutes when you’re challenging nationally applicable regulations. So the D.C. Circuit ends up deciding an awful lot of challenges to EPA regulations, and the composition of that court has certainly shifted. Some people even call that sometimes “the second-highest court in the country.”

Stone: Let’s jump in for a moment to some of the background here, the regulatory background, the framework — let’s put it that way. So the Clean Air Act of 1970 is the legal foundation for much of the environmental regulation that has taken place over the past 50 years. Can you explain the importance of the Clean Air Act to climate-related rule-making, and why interpretation of the Clean Air Act has become, in particular, a flashpoint around environmental regulation?

Coglianese: Well, the Clean Air Act, as you said, was adopted in 1970. There were certainly indications and concerns about climate change present even at that time. In fact, there were some Congressional hearings prior to 1970, focused on climate change. It’s somewhat surprising because we think about public awareness of climate change as being a much more recent phenomenon, but it’s also fair to say that climate concerns were not really the principle problem animating the design and passage of the Clean Air Act in 1970, so much so that the way the whole act is structured, in many respects, doesn’t really fit the climate problem. The way the act primarily targets air pollution and air quality issues is to start with a set of nationally ambient air quality standards. How much pollution can be in the ambient air that we breathe? And then it calls upon states to develop plans to reduce that pollution. And those plans have to bring the quality of air within a state into attainment with these national ambient air quality standards.

That works fine for particulates. It can work fine for a lot of traditional air pollutants, but when you have a problem of globally-mixed air pollutants like greenhouse gases, it’s not clear that Pennsylvania reducing greenhouse gas emissions from within its borders will do a whole lot to the amount of carbon dioxide that’s building up in the upper atmosphere above Pennsylvania. It’s a globally-mixed pollutant. It goes up into the atmosphere and mixes with other countries. This is why it’s a global problem, right?

So the Clean Air Act really, structurally, its basic structure about having these ambient air quality standards set at the national level, and then having states come up with ways to get the air quality within their borders just doesn’t really fit with the climate problem. That said, the way that the statute is written in some parts, particularly with respect to automobile emissions, does suggest that EPA has an obligation to address climate-changing pollution. And in fact, during the second Bush administration, a case went to the Supreme Court on that very issue. The Bush administration had declined to adopt automobile emission standards, and when it declined to do that, the states and environmental groups went to court, and in a decision called Massachusetts v. EPA, the Supreme Court had to decide whether or not the automobile emissions provisions, which are a little different than these ambient air quality standards, give the national EPA the primary authority to regulate automobile emissions — with one exception, known as the “California waiver” because California had auto emissions standards in place before the adoption of the Clean Air Act.

In any event, in Massachusetts v. EPA, the Supreme Court said, “No, when we look at the way the statute is written with respect to these automobile emissions, EPA, you cannot just decline to go forward and regulate these emissions. You have to do it.” So Massachusetts v. EPA really put the EPA in the business of dealing with climate change, but primarily through automobile emissions. Now what was creative, if you will, in the Obama administration was that EPA took the position that since it had to regulate automobile emissions and did pursue those standards, the agency also could exploit a provision called Section 111(d), which allows it to set performance standards for certain kinds of stationary sources. And they targeted electric utilities under the Clean Power Plan. But there were aspects of the Clean Power Plan that also didn’t quite fit, at least super clearly, with the terms of Section 111(d) under the Clean Air Act.

Ultimately, you’ve got a modern day global pollution problem, and the EPA has been trying to use an antiquated, 50-year-old statute to address it. And that, then, inevitably I think, creates legal questions and uncertainties that put things into the courts. So that’s why I think you see, as you put it, “the Clean Air Act becoming a flashpoint for controversy,” because it’s just not always exactly clear how the EPA should go forward to deal with this modern problem under an older statute.

Stone: So again to restate that, the conflict, if I understand correctly here, is that the Clean Air Act was not written primarily with climate change in mind. It has been through Massachusetts v. the EPA in 2007. A way has been opened for it to be applied, but I think if I understand correctly, today some people are saying, “Well, don’t get too liberal with it, right?” Don’t use it in too many different instances such as stationary power, which was the real issue under the Clean Power Plan, if I understand correctly. What are its limits? Where is it applicable, and what is going beyond the boundaries of what the Clean Air Act was meant to do?

Coglianese: Exactly, yes. You’ve got the need to have the agency adapt and solve a new problem under provisions that just, when Congress was creating it, was not really thinking about that problem directly and created a statutory structure that fits much better to localized pollution problems than to global climate change.

Stone: So here is where the issue comes to a head, right? How is all this going to be interpreted moving forward? The next question I want to ask you, then, is what is the basic conservative legal ideology that might pose the most problems for Biden’s presumed regulatory agenda? What is it about the ideology that can be more prone to limit interpretation and the extent of, say, the Clean Air Act’s reach into the problem of climate change?

Coglianese: From the standpoint of conservative legal interpretation, there’s a great deal of emphasis in recent years on originalism and wanting to take legal approaches, especially on matters of constitutional law, that accord with what judges today might say were the original intentions of the framers of the Constitution. And when one looks at the Constitution, you see Article I, which gives powers to Congress, Article II, which gives powers to the president — executive powers to the president — and Article III with judicial powers to the Supreme Court and a court system that can be created underneath the Supreme Court.

So we have legislative, executive, judicial branches of government. Where does this power rest for agencies like EPA to be creating rules? Now, if EPA were just enforcing rules, that would be clearly executive, and that could fit well under this three-part structure of government in the executive branch. And EPA does enforce rules, so they do have some executive power, but when it comes to creating rules, the conservative jurists will say, “That looks a lot like legislating. Isn’t that what Congress is supposed to be doing?”

Stone: Meaning that the agency is trying to do something that wasn’t explicit in the original rule from Congress — the statute from Congress?

Coglianese: Well, the question arises, and there’s a legal doctrine that’s somewhat antiquated. Some have even said it has been more existent in theory than in practice, called the “non-delegation doctrine” that would provide a constitutional limit on Congress’ ability to give rule-making authority to an agency like EPA. In other words, even if an agency says, “Oh, I can do this because Congress authorized us to do this,” the conservative legal ideology might say, “Wait a minute. There’s a higher law, the Constitution, that places a limit on Congress’ ability to transfer legislative powers, rule-making powers to agencies. And so there is a concern animating much of the contemporary legal discourse about regulation broadly and environmental regulation specifically about how much Congress has given over — too much power, more power than they really should or could under the constitutional framework to administrative agencies. Some would say that the administrative state that we have today, to the extent that it allows agencies to make laws, is in contravention of that originalist viewpoint, that the legislative power should be exercised by Congress, and not by another branch of government.

Stone: There’s another legal principle that’s often talked about in the same breath as environmental regulation, and that’s called “the Chevron deference” or “the Chevron doctrine,” and it’s rooted in a 1984 Supreme Court decision. Can you tell us about the significance of the Chevron doctrine and why conservative jurists may be interested in limiting it?

Coglianese: It goes back again to delegation and giving power to the agencies, rather than having Congress have the ultimate power over policy decisions. The Chevron doctrine holds that agencies, when they’re carrying out a statute, can construe the terms of that statute if those terms are ambiguous and that the courts should actually defer to those agency interpretations of ambiguous statutory terms whenever the agencies are picking reasonable interpretations. Obviously it’s not carte blanche to the agencies to interpret ambiguous statues — agencies can’t do something outlandish — but as long as the agencies are reasonable, then the courts should really give deference to what the agency has determined.

It actually is a principle and reflective of a practice that courts had engaged in for many, many decades before 1984, but the framework rubs some conservatives a little bit wrong because they see that it’s going back to those three basic branches of government in the original constitutional structure. It’s a decision for the judiciary to decide what the law means, not to give now the agencies, who are not only executing the law, but as we’ve been talking about, have had rule-making authority and get legislative powers. Now essentially, Chevron, some would read, is giving agencies judicial authority, and that rubs conservatives wrong.

I think it’s not a fair reading of the Chevron doctrine. The Chevron doctrine is much more justifiable in the delegation of authority that Congress has granted to agencies. Sometimes this is even explicit. Congress will say, “Give the power to the agency to define what key terms in the statute will mean.” But often it’s also implicit that the agency really is the body that Congress intended to have the power to make sense of a complex statute. I think it is a symbolic point of controversy, perhaps more than a real substantive one. And why do I say this?

There is empirical research that looks at the degree to which agencies won cases challenging the agency action on statutory grounds before Chevron and after Chevron, and it didn’t really change so much. So it’s not clear that getting rid of the Chevron doctrine will necessarily mean that courts will be less deferential. In fact, even though they won’t be going forward citing the Chevron doctrine for that deference, I think this is probably the one case and the one administrative law doctrine that’s most susceptible to change or modification under the new 6 to 3 conservative Supreme Court. It’s just a question of when, probably. But again, it’s also a question of whether it will really, in fact, make a difference because courts are generalists, and even at the D.C. Circuit, which does get a lot of regulatory cases, judges recognize that they’re not expert in these matters. I would expect that the government agencies, if they’re doing their homework well, will probably continue to get, in fact, a good bit of deference still, even if Chevron is modified or even overruled.

Stone: I’m curious to know how Biden’s agencies might seek to navigate expected legal opposition. Will the EPA, for example, write rules differently than it might if there were a more liberal court?

Coglianese: You know, they will pay much more attention to the textual support in the statutes and making textually-based arguments, but to a large extent, that has been the case for many, many years. So I think the general advice today is to do what EPA has tried to do in years past, and that is make sound decisions and justify them well and pay attention to the statutory arguments at issue.

Stone: I’ve got a couple more questions here for you. Let me ask you this: In recent years, and this is kind of a related issue — In recent years, a number of cities have sought to sue fossil fuel companies for climate damages. There’s a related case, BP v. Baltimore, which is in front of the Supreme Court right now. In general, cities prefer that the cases be tried in state court, while the companies have often sought to have jurisdiction shifted to the federal level. Why is it important where these cases are heard? And I think the BP v. Baltimore case is not actually about the merits of the case itself but where it should be heard. I want to get your input on that.

Coglianese: Sure. There’s a very technical procedural question before the court in the Baltimore case that really doesn’t go to the merits of the liability of oil companies for climate damages. But there have been a number of these suits. The Juliana case is most famous, but there are, I think, about twenty other cases that cities have filed seeking compensation from oil and gas companies for the kinds of damages that the cities are incurring, whether it’s to address flooding or other kinds of damages associated with climate change.

The federal courts haven’t been receptive to these claims so far, and I think it’s probably unlikely that they will be, going forward. So lawyers who find that one court or one legal system, if you will, federal versus state legal systems are not working for you, you ought to try another one. And maybe state courts would be more sympathetic to the local kinds of concerns that these cities are bringing. So that’s, I think, why you get the litigation over these very technical questions about when cases filed in the state court can be or have to be removed to federal court for deciding. And that’s really the central issue going on in the Baltimore case before the Supreme Court.

Stone: If climate change impacts become more severe and immediate, as they are expected to do, might that influence how courts view climate-related cases? Does the Supreme Court or any court respond to the zeitgeist, or is this just kind of wishful thinking?

Coglianese: Well, listen, I think judges are humans, and they’re aware of what is happening in society. Some justices, I think like Chief Justice Roberts, are maybe more sensitive than other justices to the social context within which litigation is arising and the implications that that context might hold for the legitimacy of the court and its decisions.

I don’t know that the zeitgeist around climate change is likely to dramatically affect judges, partly because the zeitgeist around climate is not necessarily dramatically affecting even public sentiments. People still are not —

Climate is kind of a hard issue to mobilize around. It’s first of all an abstraction, in a way. Sure, we can see events like a winter storm that knocks out power in Texas. That’s very dramatic, but storms have been around for a while. In 2011, Texas had, I think, an earlier storm that knocked out power in significant sections of the state. In some ways with climate, we’re all like the proverbial frog in the pot of water. And it’s slowly creeping up.

So I don’t know that we will see a severe, profound disjuncture among the way the courts approach these issues, just because the planet keeps getting warmer, and we deal with the problems associated with it. It’s not likely to, I think, factor in significantly. And I think at the end of the day, if it factors in, it’s indirect because people care about climate change, and people elect representatives in Congress, and they elect a president. The actions that those political branches take — if again, if there’s legislative support for regulation, even conservative justices, by their own principles, would say, “Okay, that’s fine. It’s authorized by Congress. What we were worried about is agencies going off and making laws instead of the Congress doing that.”

Stone: Cary, thanks for talking.

Coglianese: Thank you, Andy. It’s always good to talk.

Stone: Today’s guest has been Cary Coglianese, Director of the Penn Program on Regulation at the University of Pennsylvania Law School. If you enjoyed this podcast you may also like other episodes, all of which are available on the Kleinman Center’s website and on Apple podcasts. We have a recent episode into the potential end challenges of carbon dioxide removal. There’s our podcast on corporate America’s big push into renewable energy, and we have a recent episode on the role that the Treasury Department and its new Secretary, Janet Yellen, will play in the Biden administration’s comprehensive effort to address climate change.

You can get updates on all the latest insights from the Kleinman Center by subscribing to our monthly newsletter on our homepage. Thanks for listening to Energy Policy Now, and have a great day.  


Cary Coglianese

Edward B. Shils Professor of Law
Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political Science at the Carey School of Law. He also is the director of the Penn Program on Regulation.

Andy Stone

Energy Policy Now Host and Producer
Andy Stone is producer and host of Energy Policy Now, the Kleinman Center’s podcast series. He previously worked in business planning with PJM Interconnection and was a senior energy reporter at Forbes Magazine.