Top court nominee has long knocked back environmental rules
Environmental groups were not going to be happy with anyone President Donald Trump picked for the Supreme Court. But the nomination of Judge Brett Kavanaugh has them especially worried.
A conservative who would replace the more moderate Justice Anthony Kennedy, Kavanaugh has a record of slapping back Environmental Protection Agency regulations during his 12 years as a federal appeals court judge.
Kavanaugh could shift the court to the right in many areas. But Kennedy was especially pivotal on environmental cases, ruling with the majority on nearly all of them over 30 years on the bench — and often siding with the environmentalists in the biggest cases.
Kavanaugh has a narrower view of what environmental protections the federal government can implement. That was clear from an Associated Press review of his opinions while on the U.S. Court of Appeals for the District of Columbia Circuit, along with other writings and speeches.
“It threatens to take us back to the old days,” said Pat Gallagher, the legal director at the Sierra Club, recalling environmental disasters from the 1960s and ‘70s. “The Cuyahoga River, Love Canal — when there was no environmental protection.”
Kavanaugh’s backers don’t see him as anti-environment.
“His rulings in cases involving the EPA say far more about the aggressive nature of the EPA in terms of trying to stretch beyond its breaking point its mandate from Congress,” said John Malcolm, vice president of the conservative Heritage Foundation’s Institute for Constitutional Government.
Republicans hope the Senate can confirm Kavanaugh by the time the court’s next session begins Oct. 1. But that is in doubt because of delays in reviewing documents related to Kavanaugh’s time in President George W. Bush’s administration.
In his opinions on environmental issues, Kavanaugh has often stressed the importance of policies to protect against climate change before saying that Congress, not the EPA, should create those policies.
One prominent example came last year in a majority opinion that found the EPA lacks the authority to regulate hydrofluorocarbons, chemicals linked to global warming. Kavanaugh wrote: “EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate.”
William Buzbee, a Georgetown Law professor who teaches constitutional and environmental law, said Kavanaugh often rules that either Congress didn’t delegate duties clearly enough to the EPA or that the agency wasn’t carrying them out correctly — in contrast with a history of judges giving wide latitude to agencies to try to solve problems.
“It’s a move that sounds like an attitude of deference and separation of power,” Buzbee said. “The effect is to take away an agency’s powers to deal with real-world problems.”
President Barack Obama relied heavily on administrative action as Republicans controlled Congress for most of his presidency and resisted passing laws that favored environmental protections over companies.
Kavanaugh addressed that in the hydrofluorocarbons case: “Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change.”
Kavanaugh took similar approaches in two major 2012 rulings.
In one, Kavanaugh dissented from the circuit, wanting to grant further review in a case in which the appeals court upheld the EPA’s ability to regulate greenhouse gases.
In another, Kavanaugh wrote the majority opinion to eliminate a 2011 EPA rule limiting emissions from power plants and other sources to reduce pollution in neighboring states. Writing for a divided panel, he found that this “good neighbor” rule overstepped the EPA’s authority. The Supreme Court overruled Kavanaugh.
In a speech last year at the American Enterprise Institute, Kavanaugh praised the late Justice Antonin Scalia for applying a principle laid out by Chief Justice William Rehnquist to an EPA case. The “major questions doctrine,” he said, “is critical to limiting the ability of agencies to make major policy decisions that belong to Congress, at least unless Congress clearly delegates that authority.”
Still, Kavanaugh has not always ruled against environmental regulation. In 2010, he wrote the majority opinion for a divided panel when trucking groups sued the EPA over California’s regulations for engines such as those that power refrigeration systems on trucks. Kavanaugh praised the agency for properly following Congress’ directions in delegating that narrow area of regulation to California.