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Trump’s Supreme Court pick has a history of tossing out Obama’s environmental regulations

Brett Kavanaugh wants Congress to set the laws — not the EPA.

by Christianna Silva
Jul 10 2018, 8:25pm

Long before the current Environmental Protection Agency started slashing Obama-era regulations, President Donald Trump’s Supreme Court nominee, Brett Kavanaugh, made a name for himself doing the same on the D.C. circuit Court of Appeals.

In his 12 years on the lower court, Kavanaugh developed a robust history of ruling against environmental regulations and leaning hard on Congress to set its own laws, instead of relying on the EPA. If confirmed, he’ll replace Justice Anthony Kennedy, whose swing vote helped uphold a milestone climate change ruling that instructed the EPA to regulate greenhouse gases as air pollutants.

With multiple environmental cases heading to the Supreme Court next term — and the Trump administration's environmental rollbacks tied up in lower courts — Kavanaugh could guide the U.S. into a more conservative era of regulation.

Kavanaugh's legacy

Since his appointment to the D.C. circuit court in 2003, Kavanaugh has struck down multiple Obama-era environmental regulations — often for business reasons.

For example, Kavanaugh argued against an Obama-era ruling in 2014 that the EPA must take monetary costs into consideration when deciding if it’s appropriate to regulate mercury emissions from power plants. Kavanaugh wrote in his dissent that the EPA didn’t prove the regulation did significantly more good than harm — an opinion that a 2015 Supreme Court ruling later affirmed.

“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,” Kavanaugh wrote. “To be sure, EPA could conclude that the benefits outweigh the costs. But the problem here is that EPA did not even consider the costs.”

“Part of the problem that I see with Kavanagh is that he thinks in business terms about costs that are monetizable," said Zygmunt Plater, an environmental law professor at Boston College Law School. "But health and safety are very hard to value."

Kavanaugh also struck down an Obama-administration regulation on hydrofluorocarbons, or HFCs, in 2017 because it didn’t have approval from Congress. That same year, he ruled that the EPA has no authority to place regulations on companies to replace chemicals with more sustainable alternatives. And in 2016, in a case over President Obama’s climate change regulations, Kavanaugh argued that Congress should decide the environmental policies of the EPA, instead of the courts.

READ: A coal industry exec thinks God intervened to elect Trump

Kavanaugh has a history of arguing against regulations because Congress hasn’t explicitly approved them, according to the New York Times.

“In reality, the argument ‘Let’s wait for Congress’ means ‘Let’s not regulate at all.’” Plater said. “If an agency doesn’t do it, it won’t be done.”

But Jonathan Adler, the director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law, thinks Kavanaugh is just pushing big agencies like the EPA to “do their homework,” as he wrote for Reason.

“This has often led to decisions invalidating agency action — both in challenges brought by supporters and opponents of regulation — but Judge Kavanaugh is not an anti-regulatory zealot,” he wrote. “Where agencies play by the rules, he has upheld their actions against legal challenge, even where the actions in question may seem unreasonable or unfair.

It’s worth noting that Kavanaugh has also ruled in favor of the EPA. In one high-profile case, he sided with the EPA and allowed them to limit emissions from refrigeration unit trucks in California. In another case in 2013, he sided with the EPA to veto a West Virginia mining project.

Future cases

The Supreme Court has already decided to hear 38 cases for its upcoming term, and when the high court reconvenes this summer to hear them, Kavanaugh might be sitting on the bench.

One of the first cases Kavanaugh could hear as a Supreme Court justice is Weyerhaeuser v. U.S. Fish and Wildlife Service, which pits the scope of the Endangered Species Act against the rights of private land owners. It’s a case similar to one that Kavanaugh ruled on in 2011.

As a circuit judge at the time, Kavanaugh ruled that just because there was a sighting of four endangered fairy shrimp in San Diego, that plot of land couldn’t be classified as a “critical habitat” under Endangered Species rules. In the upcoming case, Fish and Wildlife has tried to designate land as critical habitat where an endangered frog hasn’t been spotted in 50 years, although experts say it’s necessary for the species’ survival.

READ: EPA chief is using MAGA math to justify repealing the Clean Power Plan

The EPA under President Trump has also been pushing to wipe out significant chunks of the Obama-era Clean Power Plan, but judges have consistently ruled that the administration is violating federal law. Kavanaugh has already ruled on the Clean Power Plan once, in West Virginia v. U.S. EPA, although the court never decided on the case because Trump’s election killed the issue. But there's a chance the plan will wind up in the courts again, potentially making it all the way up to the high court, so Kavanaugh might have another shot at ruling.

Cover image: President Donald Trump greets Judge Brett Kavanaugh, his Supreme Court nominee, in the East Room of the White House, Monday, July 9, 2018, in Washington. (AP Photo/Evan Vucci)