The Environmental Issues with Brett Kavanaugh as a Supreme Court Justice

Trent Dougherty, July 10, 2018

In anticipation of President Trump’s second Supreme Court nomination in two years, I jotted down four questions:

  • Whether the United States can regulate the emission of climate altering air pollution;
  • Whether our drinking water will be free from chemical contamination;
  • Whether the Clean Water Act will ensure our kids can splash in healthy creeks;
  • Whether giant utility companies are valued more than the health of everyday Americans.

Since his appointment in 1988, Justice Kennedy has been the critical deciding factor in these important questions in cases that have shaped how the federal government protects our shared environment – and the health of each of us. While at times not shy to vote with the more conservative majority and support private property rights over communities, Justice Kennedy was similarly willing to fight for aggressive federal government action to limit pollution and ensure that we as a nation have the clean air and water we deserve.

As the President announced Judge Brett Kavanaugh as his choice to replace Kennedy, I immediately knew the answers to those questions if the Senate confirms him.  I will not mince words.

If the Senate confirms Judge Brett Kavanaugh as the next Supreme Court Justice, it will jeopardize the environmental movement’s fight to uphold federal laws that protect our environment, our communities, and our children. The Senate will instead clear the path for the Court to reduce environmental costs to big businesses at the expense of human health.

I say this not because President Trump nominated Mr. Kavanaugh, and not because the President regularly nominates people with extreme ideology to federal positions. It’s because Judge Kavanaugh’s track record supports that negative outlook. The opinions of Judge Kavanaugh paint a crystal clear picture of perpetual antagonism toward the US Environmental Protection Agency and its authority to protect the health and safety of everyday Americans.

For a dozen years on the bench of the D.C. Circuit Court, he has consistently overturned EPA regulations designed to protect the air we breathe and the water we drink while putting the profits of industry polluters before human health and the environment.

A brief snapshot of his decisions on the court show how Mr. Kavanaugh has not only taken positions that contradict beliefs held dear by environmental and public health advocates, but positions that are against the beliefs of the public:

  • He ruled against the EPA’s authority to limit states from polluting neighboring states. The rule would have cut sulfur dioxide emissions by 73% and nitrous oxide emissions by 54%, and prevented 34,000 premature deaths. This decision was later overturned by 6-2 majority of the Supreme Court.
  • Kavanaugh dissented when the D.C. Circuit upheld the EPA’s emission standards for mercury and other hazardous pollutants from coal and oil-fired power plants.  
  • He dissented in the D.C Circuit’s approval of the Obama EPA’s first-time rule limiting emissions of the greenhouse gas methane from new oil and gas drilling operations.

By nominating Judge Kavanaugh, President Trump has wielded power that could fundamentally alter the nation’s ability to safeguard the health and safety of its citizens for decades to come. The Supreme Court is not the place for partisan politics or extreme ideologies – especially when environmental health and environmental justice is at stake. Now more than ever, the Court needs Justices with a keen appreciation for precedent, protection, and prudence.

The first case that a newly minted Justice, Kavanaugh would hear may put his anti-environment bona fides to the test, as it pits the conservation of endangered species against the industry property rights. On October 1, the Supreme Court will hear oral arguments regarding Weyerhaeuser Company v. United States Fish and Wildlife Service. The court will consider first whether the Endangered Species Act permits the U.S. Fish and Wildlife Service to designate private land as “critical habitat,” and if it can, whether the decision to include private land in a critical habitat designation regardless of the economic costs is subject to judicial review.

Judge Kavanaugh’s history on the D.C. Circuit indicates he would likely rule against the U.S. Fish and Wildlife Service. He often opposes any decisions that would broaden the power of agencies to protect the environment through regulations or administrative decisions, and the property owners in Weyerhaeuser Company specifically argue that the USFWS went well beyond its statutory mandate. On his very first day, Kavanaugh could show he does not believe the government should do its duty to protect endangered species.

It is now up to Senators Sherrod Brown, Rob Portman, and their colleagues to ask the tough questions and demand straight answers of Mr. Kavanaugh. It is their duty to make certain that when faced with these important ramifications for our planet, and the health of the people inhabiting it, that the nominee for a lifetime on our highest court will be fair, independent, and just. When it comes to the environment, unfortunately, the track record speaks for itself, and that certainty is lacking. Simply put, Ohio Senators Sherrod Brown and Rob Portman must fight to keep Brett Kavanaugh from becoming a Supreme Court Justice.