In a Congressional hearing, all questions are asked for a reason. Who asks what question can be as interesting as the answer itself. So it caught my attention when early in Wednesday’s hearing Republican Sen. Orrin Hatch asked Judge Brett Kavanaugh about his environmental record. That a senior Republican felt the need to use some of his precious question time to ask Kavanaugh about environmental law suggests a desire to give the nominee a chance to inoculate himself against a vulnerability.
With 37% of the public saying they don’t know enough to take a position on Kavanaugh’s nomination, Judge Kavanaugh’s answers to questions during his confirmation hearing are crucial to shaping the public’s view of his nomination to the Supreme Court.
So how did Kavanaugh do in bolstering his environmental record?
Not well, according to NRDC lawyers knowledgeable about two of the cases he rattled off in response to Sen. Hatch’s question.
In particular, he spent time discussing NRDC vs EPA, a 2014 case about air pollution from cement plants. This is an odd case to highlight since his ruling was against safeguards to limit air pollution. His only point of agreement with NRDC was that EPA had violated plain statutory language in their attempt to evade court precedent that “affirmative defenses” are illegal under the Clean Air Act. Otherwise he ruled against our litigators’ three other challenges to protect public health from harmful emissions from cement plants.
Also on his list was National Mining Association v. McCarthy. Again, this case isn’t evidence of him siding with environmental interests. It was a case about whether EPA and the Army Corps could adopt procedures to coordinate mining permit reviews and whether an EPA guidance document was reviewable.
Most of the cases he brought up Wednesday were cases about process, not environmental protection.
The weak evidence he offered up in defense of his environmental record stands in stark contrast with his written opinions from his dozen years on the bench. Analysis of that record led NRDC to oppose Judge Kavanaugh’s nomination to the Supreme Court—something we don’t do lightly.
On the bench, Kavanaugh wrote opinions that consistently put the interests of corporate polluters before the public interest. If adopted by the Supreme Court, his opinions could make it difficult, if not impossible, for citizens and public interest groups to use our laws and courts to hold polluters to account; make it harder for federal agencies to protect the environment and public health and make it easier for industry to get away with violating environmental laws.
Let’s examine a few of those cases.
It’s been a record-breaking, sweltering start to September in DC so Judge Kavanaugh’s opinion that impacts the reduction of heat-trapping pollution is a good place to start.
Last year, he wrote the majority opinion for a 2-1 decision that struck down an EPA rule requiring companies to swap out hydrofluorocarbons—powerful climate-changing pollutants—for safer alternatives in air conditioners, refrigerators, aerosol cans and other everyday products. NRDC has challenged that decision and the Supreme Court is weighing whether it will hear the appeal.
“EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate,” Kavanaugh wrote. “Congress’s failure to enact general climate change legislation does not authorize EPA to act. 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.”
In fact, Congress was well aware that carbon dioxide and other greenhouse gases were warming the planet by the time it passed the Clean Air Act of 1970.
Congress had been so advised by a 1965 scientific panel report from President Lyndon Johnson, who told Congress that “Air pollution is no longer confined to isolated places. This generation has altered the composition of the atmosphere on a global scale through radioactive materials and a steady increase in the burning of fossil fuels.” Under President Richard Nixon, the Council on Environmental Quality’s first annual report to Congress, in 1970, stated flat out that “air pollution alters climate and may produce global changes in temperature” and devoted an entire chapter to the subject.
Congress took note, explicitly identifying effects on “climate” and “weather” as part of the adverse environmental affects the 1970 Clean Air Act was written to prevent. Indeed, the Supreme Court has affirmed—in 2007, 2011 and 2014—that the Clean Air Act authorizes the EPA to set limits on carbon emissions and other pollutants that trap heat in the atmosphere.
With this view and as the swing vote on the high court, Kavanaugh could pose a mortal threat to the Clean Power Plan, which is wending its way through the courts now and which the Trump administration seeks to eviscerate. Put in place by the EPA in 2015, the plan calls for cleaning up the dirty power plants that account for nearly 40 percent of the U.S. carbon pollution that’s driving global climate change.
While the costs of climate change are mounting, Judge Kavanaugh’s views on the costs of environmental protection on industry could constrain what the federal government can do to protect clean air, drinking water and public health.
He has ruled that agencies must consider costs when they undercut the argument for responsible public oversight of industry but may not consider costs that support commonsense safeguards against industrial hazard and harm. He found, for example, that costs could not be considered when they supported cuts in air pollution that could drift from one state to the next. That was the basis of the 2012 majority opinion he wrote in a 2-1 decision that struck down the EPA’s 2011 Cross-State Air Pollution Rule. The Supreme Court reversed Kavanaugh’s opinion in a 6-2 ruling, finding that his rigid interpretation ignored “the realities of interstate air pollution.” On Friday, Hunter LaChance, a teenage asthmatic from Maine, will discuss the human costs of air pollution on vulnerable people like himself living in downwind states.
By contrast, Kavanaugh ruled that costs must be considered, and faulted the EPA for not doing so, when the agency blocked the Mingo Logan Coal Company from burying some seven miles of Appalachian streams beneath rock, dirt and toxic coal mine waste in 2011.The agency took the action only after an extensive review, some 50,000 public comments and more than a year of unsuccessful efforts to get the coal company to come up with an alternative plan for dealing with the waste and rubble. Even so, Mingo Logan filed suit, accusing the EPA of acting in an “arbitrary and capricious” manner. The D.C. Circuit court rejected the argument in a 2-1 ruling, with Kavanaugh dissenting. He criticized the EPA for not considering the economic interests of the coal company’s “owners and shareholders” and instead going to bat for “a few animals, such as salamanders, fish, and birds.” Judge Kavanaugh’s colleagues faulted him for embracing this cost argument even though the coal company hadn’t made it to EPA or to the lower court.
And there are other cases that demonstrate Judge Kavanaugh’s tendency to prioritize corporate polluters over healthy air, clean water and public health.
Americans value health and environmental safeguards. They want the courts to hold polluters accountable. Despite his response on Wednesday, Judge Kavanaugh’s record suggests he won’t. His answer satisfied Sen. Hatch but it shouldn’t satisfy the American people.