Supreme Court nominee Brett Kavanaugh‘s previous opinions are drawing intense scrutiny for a glimpse into how he would rule on the nation’s high court.
The former clerk for Justice Anthony Kennedy has authored more than 300 opinions and dissents during his 12-year career on the U.S. Court of Appeals for the District of Columbia Circuit.
“My judicial philosophy is straightforward,” Kavanaugh said during his nomination acceptance speech July 9. “A judge must be independent and must interpret the law, not make the law.”
An examination of notable quotes from Kavanaugh’s higher-profile cases give some indication of how he could rule on environmental cases from the Supreme Court bench if confirmed.
(In-line citations to other cases were omitted.)
Authority to Regulate Ozone Depletion
In the 2017 case Mexichem Fluor v. EPA, Kavanaugh wrote an opinion that concluded the Environmental Protection Agency has no authority to require companies to replace refrigerant chemicals with more sustainable alternatives.
“The Supreme Court cases that have dealt with EPA’s efforts to address climate change have taught us two lessons that are worth repeating here. First, EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate. The agency must have statutory authority for the regulations it wants to issue. Second, 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.”
Considering Monetary Costs in Emissions Regulations
Kavanaugh said in a dissent in White Stallion Energy Ctr. LLC v. EPA that the agency should have considered the cost to the power industry before regulating toxic air pollution in 2014.
“So it comes as a surprise in this case that EPA excluded any consideration of costs when deciding whether it is ‘appropriate’—the key statutory term—to impose significant new air quality regulations on the Nation’s electric utilities. In my view, it is unreasonable for EPA to exclude consideration of costs in determining whether it is “appropriate” to impose significant new regulations on electric utilities. 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. And the costs are huge, about $9.6 billion a year—that’s billion with a b—by EPA’s own calculation.”
Interpreting the Clean Air Act
In the 2009 case Coalition for Responsible Reg. v. EPA, Kavanaugh dissented in the case that stems from whether the Clean Air Act and D.C Circuit’s previous decision in Massachusetts v. EPA prohibits the agency from considering whether regulations addressing greenhouse gases would mitigate certain risks.
“Of course, our role is not to make the policy choices or to strike the balance between economic and environmental interests. That job is for Congress and the President when considering and enacting legislation, and then as appropriate for the Executive Branch—here, EPA, under the ultimate supervision of the President—when exercising its authority within statutory constraints. Our job as a court is more limited: to ensure that EPA has acted within the authority granted to it by Congress. In this case, I conclude that EPA has exceeded its statutory authority.”
EPA’s Cross Air Pollution Rule
In EME Homer City Generation L.P. v. EPA, Kavanaugh’s opinion in the 2015 case struck down chunks of the EPA’s Cross-State Air Polllution rule, because it required some upwind power plants to control their emissions more than necessary for downwind states to meet federal standards.
“Despite those rather clear transgressions of the statutory boundaries as set forth by the Supreme Court in EME Homer, EPA argues that petitioners’ over-control challenges should fail. EPA advances two main arguments, neither of which is persuasive in light of the Supreme Court’s opinion.”
Deferring to Scientific Expertise
In the 2014 case Wild Earth Guardians v. EPA, Kavanaugh wrote the opinion that touched on how courts should respect federal agency’s scientific expertise.
“The arbitrary and capricious standard is deferential; it requires that agency action simply be “reasonable and reasonably explained.” As a general matter, we grant EPA significant deference in setting the NAAQS. We also “give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise.” We “do not look at the decision as would a scientist,” but only to ensure that EPA adheres to “certain minimal standards of rationality.”
EPA’s Affirmative Defenses
In the 2014 case Natural Resources Defense Counsel v. EPA, Kavanaugh wrote an opinion striking down an affirmative defense for cement kilns that violate toxic pollution standards.
“In wading through this back-and-forth, we ultimately need not decide whether EPA’s reading is the better or only reading of this statutory provision, but simply whether it is a permissible reading. EPA administers the Clean Air Act, and we must defer to its reasonable interpretation of any ambiguities in the statute. Here, even if the statute does not compel EPA’s reading, and indeed even if EPA’s reading is not the better reading, the statute at a minimum is sufficiently ambiguous on this point to permit EPA’s reading of ‘other authority.’ Because EPA’s reading is at least reasonable, we reject petitioners’ argument and rule for EPA at Chevron step two.”