Brett Kavanaugh Has a Shaky Track Record on the Environment

Supreme Court associate justice nominee Brett Kavanaugh stands in the U.S. Capitol.
Supreme Court associate justice nominee Brett Kavanaugh at a meeting at the U.S. Capitol in Washington, D.C. on July 10, 2018. Mandel Ngan/AFP/Getty Images

Donald Trump announced his nomination of Brett Kavanaugh to the Supreme Court on Monday night. Trump’s presidency has already been a disaster for the environment, and this move is likely to be no exception. As a judge on the United States Court of Appeals for the District of Columbia Circuit, Kavanaugh repeatedly wrote opinions that exposed his lack of support for environmental protection, ruling multiple times against Environmental Protection Agency attempts to regulate air pollution and address climate change. In each case, Kavanaugh cited what he considered to be overreach by the federal agency as justification.

Kavanaugh’s record on the environment—as with many other fraught political issues—is a subject of scrutiny because Justice Anthony Kennedy had served as a crucial swing vote on environmental protections. Most notably, Kennedy cast the deciding vote in the landmark 2007 Supreme Court case Massachusetts v. EPA, which ruled that the EPA has the authority to regulate carbon dioxide and greenhouse gases as air pollutants under the Clean Air Act.

Here’s a rundown on several key decisions that may shed light on Kavanaugh’s approach to the environment on the Supreme Court:

2012: In a split ruling, the Court of Appeals for the District of Columbia struck down a federal rule aimed at reducing air pollution in downwind states caused by power plants, smokestacks, and refineries in upwind states (known popularly as the Cross-State Air Pollution Rule). In the opinion, written by Judge Kavanaugh, the court found that the EPA had overstepped its authority by improperly requiring states “to reduce their emissions by more than their own significant contribution to a downwind state’s nonattainment.”

2014: Judge Kavanaugh argued in a dissenting opinion that the EPA must weigh monetary costs when deciding whether to regulate power plant emissions. In the case, the appeals court affirmed the EPA’s emissions standards for mercury and other pollutants from power plants, and the majority agreed that the EPA did not need to consider the costs. Kavanaugh bristled at this decision, writing, “In my view, it is unreasonable for EPA to exclude considerations of costs in determining whether it is ‘appropriate’ to impose significant new regulations on electric utilities.”

2016: During oral arguments about the Clean Power Plan, President Obama’s signature climate change policy, Judge Kavanaugh acknowledged that climate change is real, but suggested that it was the job of legislators to come up with solutions, not the EPA or the courts. “The policy is laudable,” Kavanaugh said, referring to the Clean Power Plan. “The earth is warming. Humans are contributing. I understand the international impact and the problem of the commons.” But, he added, “Global warming isn’t a blank check” for the president to impose emissions regulations.

2017: In a 2-to-1 ruling, the Court of Appeals for the District of Columbia ruled against an Obama-era EPA regulation that aimed to phase out hydrofluorocarbons, a type of potent greenhouse gas commonly used for refrigeration and air conditioning. The court ruled that the EPA cannot ban the substances under the Clean Air Act provision meant to protect the ozone layer. “However much we might sympathize or agree with EPA’s policy objectives, EPA may act only within the boundaries of its statutory authority,” Judge Kavanaugh wrote.
“Here, EPA exceeded that authority.”

In each of these cases, Kavanaugh’s legal philosophy rested on the idea that the EPA’s expansive attempts to regulate pollution and combat climate change go too far, unless there’s an explicit go-ahead from Congress. This philosophy is particularly worrisome when Congress currently seems to have no interest in regulating pollution or combatting climate change. Richard J. Lazarus, a law professor at Harvard, told the New York Times that Kavanaugh’s approach is “a neutral principle, although the effect isn’t always neutral … Congress stopped making clean air laws after 1990, so the E.P.A. has to work with increasingly tenuous statutory language. In effect, his approach to environmental law would make it harder to address current problems so long as Congress remains out of the lawmaking business.”

While some experts are holding out hope that Kavanaugh may be “persuadable” on environmental issues, many are worried about the long-term impact of his appointment. Bill Snape, a law professor at American University and Center for Biological Diversity senior counsel lamented Kavanaugh’s environmental record to BuzzFeed News, delivering an incredible quote that the internet has embraced with understandable glee:

If only our pressing environmental crises could be solved with magic.