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Let’s Talk About the Most Important Line from Kavanaugh’s Confirmation Hearing

Chris Tavenor, General Counsel, September 10, 2018

Over the last week, all eyes have centered on the drama unfolding in Washington D.C., both at the White House, and in Congress. Senators on the Judiciary Committee simultaneously argue about the disclosure of thousands of documents while interviewing President Trump’s latest nominee to the Supreme Court.

Amidst all the rhetoric about women’s rights, gun rights, and unbridled executive power, you may have missed one seemingly innocuous conversation. On Thursday, during the third day of Judge Brett Kavanaugh’s confirmation hearing before the Senate Judiciary Committee, Senator Sasse (R-Nebraska) asked the Judge the following question (paraphrased for clarity):

Sen. Sasse: Does the Supreme Court have greater latitude to override existing precedent than the lower Courts?

Judge Brett Kavanaugh: That’s correct, Senator.

These lines followed a lengthy discussion between Senator Sasse and Judge Kavanaugh regarding the Supreme Court’s decision to overturn Plessy v. Ferguson through Brown v. Board of Education in the 1950s. Throughout these hearings, Judge Kavanaugh has lauded Brown as one of his favorite Supreme Court cases. If we take Judge Kavanaugh’s statements at face value, and we consider his other comments in his judicial opinions on other matters, Judge Kavanaugh will greatly impact environmental law for decades with his approach to judicial precedent.

What is a Supreme Court precedent?

When the Supreme Court decides a case, it becomes the law of the land. Subsequent cases by the Supreme Court must follow those decisions, and lower courts must also follow those decisions. As courts consider new factual situations under a new Supreme Court precedent, they “distinguish” those situations from the original ruling of the Court.

When the Supreme Court overturns “precedent,” it goes beyond just merely distinguishing particular cases from one another. It actually rules that the controlling law established in a previous case was wrong, and that the courts must now apply a new rule. Sometimes, a Court can “distinguish” cases as if they aren’t overturning precedent. And sometimes when it distinguishes its ruling from that of a previous case, functionally, it achieves the same result as if it had overturned precedent.

In the environmental context, court precedent almost always flows through this “distinguishing” process. For example, Rapanos v. U.S. clarified when a wetland is a “Waters of the United States,” regulated by the federal government. A precedent had established simply that wetlands adjacent to major water bodies (like Lake Erie) could be regulated as “Waters of the United States.” Justice Kennedy, who Kavanaugh would replace, clarified this rule in Rapanos by requiring that waters must not be merely adjacent, they must have a “significant nexus” with the nearby major water body.

So how does this relate to the hearing?  

Throughout the hearing, Senators asked the Judge about the “Chevron Doctrine,” which outlines how agencies develop regulations. Simply put, If a statute passed by Congress is ambiguous, then the Courts must defer to a “reasonable” agency interpretation.

In recent years, Justices Scalia and Roberts have distinguished certain cases from the Chevron Doctrine by adding an additional question: “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance,’” Justice Scalia said in Utility Air Group v. EPA, and Justice Roberts echoed this thinking in King v. Burwell. If Congress doesn’t speak clearly, then courts can invalidate an agency’s regulation even if their statutory interpretation was reasonable. This concept is known as the “Major Questions Doctrine,” and it is not yet a clearly defined rule at the Supreme Court.

Why does this matter?

The U.S. EPA relies on decades old statutes (the Clean Air Act and the Clean Water Act) to implement regulations that often have wide-ranging economic significance. Because they apply old statutes to new problems, often they must create new interpretations for those old laws. The Clean Power Plan is one such example. The Clean Power Plan would most likely violate the “Major Questions Doctrine.”

Right now, we don’t have a U.S. EPA that supports regulations like the Clean Power Plan. However, if the Major Questions Doctrine gains traction at the Supreme Court, it would eliminate any future U.S. EPA from developing a plan like the Clean Power Plan, one of the best approaches in recent years for the United States to create a clean energy future.

So where does Judge Brett Kavanaugh come in?

After Kavanaugh’s conversation with Sen. Sasse, he later discussed with Sen. Mike Crapo (R-Idaho) this “Major Questions Doctrine.” Kavanaugh described the “Major Questions Doctrine” as an implicit aspect of the Chevron Doctrine. He quoted both Justice Scalia and Chief Justice Roberts on the issue. He acted as if the Major Questions Doctrine is “long-settled” law of the Court, but it’s not. It’s appeared as a justification in very few cases, and it’s not yet been consistently applied.

However, if Judge Brett Kavanaugh joins the Court, he will have his opportunity to wield the Major Questions Doctrine. He could join Chief Justice Roberts, Justice Gorsuch, Justice Alito, and Justice Thomas to block any agency regulation that has “vast economic and political significance.”

And here’s the kicker – there is no statute that defines what “vast economic and political significance” means. Judge Brett Kavanaugh and his potential future colleagues expound themselves as textualists, yet holding this power in their hands gives them extensive discretion to decide which regulations have “vast economic significance,” such as a regulation like the Clean Power Plan or the Clean Water Rule. More importantly, they provide no intelligible principle for what “political significance” means; at least economic significance can use numbers or other calculations.

These Judges couch this doctrine under the presumption that their choice to invalidate these agency actions will force Congress to state clearly when an agency like the U.S. EPA must regulate to combat environmental threats like climate change.

They will claim that this doctrine will empower Congress to write better laws. In practice, this will not happen. Congress has failed to pass meaningful climate change legislation for decades. The U.S. EPA has been forced to creatively interpret the Clean Water Act and the Clean Air Act because Congress has failed to develop new rules. Instead of encouraging Congress to write new rules, this “Major Questions Doctrine” will give many politicians and industries exactly what they desire: a weakened U.S. EPA incapable of solving our most pressing environmental problems.

Back to the Power to Overturn Precedent

When Sen. Sasse asked Judge Brett Kavanaugh about the latitude of the Supreme Court to overturn precedent, we should all pause. The Judge says “That’s correct, Senator.” Judge Brett Kavanaugh fully understands the power of the Court to overturn cases when it feels it is necessary to do so.

While Brown v. Board of Education is vitally important to our nation, perhaps Judge Brett Kavanaugh enjoys it as his favorite case more so because it represents a clear path on how to overturn existing Supreme Court precedent. More importantly, he completely recognizes the power of the Court to distinguish old cases, like Chevron, in a way that strips the original rule of its power.

The Major Questions Doctrine would eliminate the original intent of the Chevron Doctrine – Courts must defer to reasonable interpretations of federal agencies. Instead, the Supreme Court would get to say: Well, this law is ambiguous, and your interpretation is reasonable, BUT because we feel it has “major economic or political significance,” we choose to invalidate this regulation anyways.

Furthermore, if Judge Brett Kavanaugh understands that the Court has the power to overturn precedent in certain instances, what does this mean for other significant environmental cases, like Massachusetts v. EPA, the case that requires the U.S. EPA to regulate carbon dioxide due to its role in climate change?

Any environmentalist must pause when considering Judge Brett Kavanaugh as the next member of the Supreme Court. If confirmed, he will stall all meaningful common sense environmental regulation, at least until Congress finally decides to solve the significant problems facing our country.