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The climate stakes of the Supreme Court fight

Ruth Bader Ginsburg's death and the battle over her vacant Supreme Court seat have real implications for energy and climate policy.

Why it matters: If President Trump replaces her, the court will likely become more skeptical of regulations that claim expansive federal power to regulate carbon under existing law, and perhaps new climate statutes as well.

  • If Joe Biden wins the election, that expanded conservative majority on the court could create more legal jeopardy for his promised initiatives to strengthen emissions regulations and create new major ones.
  • "[A] Biden Administration could find it harder to demonstrate that it had a 'reasoned explanation' for rewriting final, Trump-era rules," ClearView Energy Partners said in a weekend note.
  • If Trump wins again, it could strengthen his hand in defending his moves to scrap or weaken Obama-era policies.

The big picture: SCOTUS already blessed federal regulation of greenhouses gases in a 2007 decision, but how much running room it gives agencies is another question entirely. A huge thing in regulatory litigation is how justices interpret the 1984 high court ruling in Chevron v. Natural Resources Defense Council. It gives agencies leeway to interpret statutes that are vague or silent on a topic.

What they're saying: "Already, the Court has been taking a narrower view of Chevron — finding that it applies in fewer and fewer instances, so the principle of deference to agency expertise seems to apply to a smaller scope of cases," said Harvard Law professor Jody Freeman."So, this was already the direction, and a Biden administration was already going to have to be smart and strategic about regulation," said Freeman, who worked in Obama's first-term White House.

Yes, but: "Biden could do a lot on climate change within the EPA’s well-established authority to reduce greenhouse gases," Freeman said, adding, "There is plenty of room to make substantial progress using executive power, while controlling legal risk."

Our thought bubble: There's an even bigger potential spillover effect from the fight over the vacant seat.

  • Imagine Trump loses and Democrats also take the Senate, but the current GOP Senate majority confirms his SCOTUS pick this year.
  • If that happens, the odds grow that Democrats would scrap filibuster rules next year to make it easier to implement their agenda.
  • That, in turn, greatly increases the odds of passing big climate and energy legislation, which faces immense hurdles with the 60-vote threshold intact.

The intrigue: Per ClearView, ending the filibuster would have multiple spillover effects.

  • "[T]he legislative filibuster does not merely shelter the fossil energy status quo by raising the bar for passage."
  • "It also gives a 41-Senator minority the power to threaten a government shutdown (i.e., by blocking funding packages) as a check against Executive Branch decisions. That check would disappear."

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How Trump’s energy endgame could go

Expect President Trump to redouble his efforts loosening regulations and questioning climate-change science should he win reelection next month.

Driving the news: A second Trump administration would supercharge efforts by certain states, countries and companies to address global warming. But some wildcards could have a greener tinge.

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Data: The COVID Tracking Project, The Cook Political Report; Table: Andrew Witherspoon/Axios

Several states that are likely to decide which party controls Washington next year have exceptionally large coronavirus outbreaks or are seeing cases spike.

Why it matters: Most voters have already made up their minds. But for those few holdouts, the state of the pandemic could ultimately help them make a decision as they head to the polls — and that's not likely to help President Trump.

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Tropical Storm Zeta may strengthen into hurricane before reaching U.S.

The U.S. Gulf Coast and Mexico are bracing for another possible hurricane after Tropical Storm Zeta formed in the Caribbean Sea Sunday.

Of note: Zeta is the 27th named storm of the 2020 Atlantic Hurricane season — equaling a record set in 2005.

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Rockefeller Foundation commits $1 billion for COVID-19 recovery

The Rockefeller Foundation announced on Monday that it will allocate $1 billion over the next three years to address the pandemic and its aftermath.

Why it matters: The mishandled pandemic and the effects of climate change threaten to reverse global progress and push more than 100 million people into poverty around the world. Governments and big NGOs need to ensure that the COVID-19 recovery reaches everyone who needs it.

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How Amy Coney Barrett will make an immediate impact on the Supreme Court

In her first week on the job,Amy Coney Barrett may be deciding which votes to count in the presidential election. By her third week, she’ll be deciding the fate of the Affordable Care Act.

Where it stands: The Senate votes on Barrett’s nomination tomorrow. If she’s confirmed, Chief Justice John Roberts is expected to swear her in at the Supreme Court within hours, an administration official tells Axios.

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