This is the first blog post in our series examining potential ramifications from the 2024 U.S. elections. We will be posting further installments in the series throughout the next several weeks.
As the election approaches, lawyers, clients, and those who don't have enough to do are beginning to speculate about what the election might mean for the Supreme Court. In my little world, people are particularly concerned about what the election results might mean for energy and environmental law. And so, notwithstanding my general reluctance to speculate, I have retrieved my crystal ball and I am ready to make some predictions.
First, some fairly basic facts. The Court's conservative wing has a solid majority and seems to be feeling its oats. Whoever wins, in the near term, this Court will be unsympathetic to environmental and energy-related regulations, unless they relate to the expansion of fossil fuel drilling and infrastructure. More broadly, as I have noted in prior posts, this Court simply doesn't like the modern administrative state. It's weird to say, but this Court is opposed to modernity itself.
Second, none of the current justices are ill or otherwise seem to be nearing retirement. It's not obvious that there will even be any open seats over the next four years. Who you see is who you're going to get. The question is, thus, where the current Court is going to take us.
One question that has been posed following the Loper-Bright decision is whether this Court would revive the non-delegation doctrine. I think it's reasonably likely that the Court will do so. However, I don't think it will mean as much as people expect because, to me, Loper-Bright was already pretty much a non-delegation decision. Chevron became necessary because, as the problems of market failure driving environmental and energy regulation became more complicated, Congress more and more enacted laws that provided broad outlines, but intentionally left the details to the Executive Branch. Chevron wasn't about allowing agencies to interpret vague statutory provisions; it was about Congress delegating the details of legislation to the agencies. I won't be happy if the non-delegation doctrine is revived, but I also don't think that it would change very many decisions.
Aside from the general notion that, one way or another, SCOTUS is likely to strike down expansive energy and environmental regulations, another issue to look at will be how SCOTUS treats state and local regulations and litigation claims. This is a Court with a significant majority of justices who call themselves federalists; generally likely to defer to state authority. Several significant environmental issues that might find their way to SCOTUS in the next few years implicate federalism concerns. These include the California Clean Air Act waiver and questions about whether state and local climate (and now plastics) litigation belongs in federal v. state court.
In 2022, I predicted that even a conservative SCOTUS would uphold the waiver. I'm no longer so sure. In any case, how SCOTUS comes down on these cases will tell us whether this SCOTUS really believes in federalism or whether it just believes that environmental regulation is a bad thing.
That's one that I'm still reluctant to speculate about, but I'll definitely be interested to see which way the Court goes.
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