In the coming months, barrels of ink will be spilled and perhaps a few tears shed over Brett Kavanaugh’s likely confirmation to the Supreme Court. After all, his addition will end a generational status quo in American jurisprudence. But, if change is coming, perhaps no area could benefit more than environmental law, and the ideal result would be a return to legislative action on climate change.
An overarching theme of the “originalist” legal thinking that lies at the center of conservative views of constitutional law is a general animosity toward the administrative state. For many political conservatives, giving broad quasi-legislative authority to executive branch agencies is an obvious violation of the separation of powers in which Congress, rather than an unelected bureaucracy, is charged with writing the law.
