A Surprise in the Presidential Debate

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Image“Climate change is usually an orphan issue,” said Douglas Brinkley, a professor of history at Rice University.
Credit…Doug Mills/The New York Times

In the homestretch of a 90-minute, insult-laden brawl that only occasionally veered into detailed policy specifics, Chris Wallace, the moderator of Tuesday night’s presidential debate, sprang a surprise: 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 on the list of topics to be discussed.

That fact has long been seen as a reflection of the perception by political campaigns that climate change is a second-tier issue, a matter of concern to niche environmentalists but not to the general public or the crucial swing-state voters who decide presidential elections.

It would appear perceptions have changed.

“Climate change is usually an orphan issue,” said Douglas Brinkley, a professor of history at Rice University. “The fact that it got raised at all last night is showing that it’s starting to get some of the national stature it deserves and is no longer just a niche Democratic left concern.”

The questions Mr. Wallace asked were pointed and specific, though the answers were less so. He pressed Mr. Trump to publicly state his specific view on whether humans contribute to climate change, to which he responded: “A lot of things do. To an extent, yes.”

Mr. Trump, as he has before, spoke about his desire for “crystal clean air and water,” while failing to reconcile those with his administration’s rollback of over 100 environmental rules, many aimed at protecting clean air and water.

Mr. Biden sought to portray himself as a champion of renewable energy, while at the same time also attempting to distance himself from the Green New Deal, even though that proposal has informed his sweeping plan to spend $2 trillion on green initiatives, an idea that is likely to gain little traction in Congress.

“While it was great that climate change was raised, it got contaminated by the insult-mania, with answers kind of ricocheting all over the place and the public not getting a clear view of how we are going to attack this crisis,” Dr. Brinkley said.

“But it’s a good opportunity for moderators to prepare for it to come up in the next two debates, to try to calm the babble and get more coherent answers about climate change.”


Credit…Anna Moneymaker/The New York Times

President Trump has nominated Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the Supreme Court, and if the Senate confirms her, it will mean a conservative supermajority of six justices on the court. That 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, currently serving 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 out of a very conservative tradition and calls herself a Scalia acolyte, I think we can safely assume she’s not going to be the friendliest justice on the environment,” said Ann Carlson, who is a director of the Emmett Institute on Climate Change and the Environment at the U.C.L.A. School of Law.

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 law clerks. She is also a prominent member of the Federalist Society, a legal group that opposes what it considers regulatory overreach and has been a wellspring of conservative judges.

Professor Carlson suggested that Judge Barrett, if elevated to the Court, would follow Justice Scalia’s lead in interpreting the Environmental Protection Agency’s powers narrowly. If former Vice President Joseph R. Biden Jr. wins the presidential election in November and tries to use the powers of the environmental agency aggressively with new regulations, she said, “he may face headwinds in the Supreme Court.”

Along those lines, Justice Barrett might also join conservative members of the court who have indicated that they might try to revive what’s known as the nondelegation doctrine, a principle on the constitutional separation of powers that says Congress should not give regulatory agencies much leeway in executing policies. The doctrine has not been used to strike down a statute or regulation since the 1930s, but “If you have six votes, I think it increases the chances” of its being revived, Professor Carlson said.

Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, said that if that doctrine was revived, Congress would have to carefully draft legislation with very specific instructions for agencies to carry out. “That’s very unfortunate,” he said. “The more specific you get, the less you can deal with unanticipated circumstances” like an evolving understanding of environmental threats.

Professor Carlson suggested that Judge Barrett has also shown skepticism about a major element of suits by environmental groups: standing to sue. Standing constitutes the rules of who can bring a lawsuit, and Justice Scalia had long worked to narrow the rules in ways that could limit access to the courts for environmental groups. She called his “a pet project.” A Scalia acolyte might try to continue that work.

Still, Professor Gerrard said, don’t expect to see a conservative majority overturn major precedents like Massachusetts v. E.P.A., which gave the environmental agency the power 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 tumult of a sweeping decision.

“It’s like a swarm of ducks peck at a small animal,” he said. “They may not kill it, but they leave it limping and bleeding.”

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