This summer the Trump administration pressed ahead with its rollback of environmental regulations, taking steps to replace the Clean Power Plan that regulates carbon emissions from power plants and to freeze vehicle fuel-economy standards. As these and other deregulatory efforts will almost certainly make their way to the U.S. Supreme Court, the future of key U.S. environmental policies will ultimately rest in part on the views of Judge Brett Kavanaugh, whose confirmation hearing is underway this week.
Why is Judge Kavanaugh so pivotal? First, recall that he would replace retired Justice Anthony Kennedy, who, while not considered a progressive on environmental issues, did join the majority in holding in Massachusetts v. EPA that U.S. EPA had an obligation to provide a reasoned explanation as to why it was not regulating greenhouse gas emissions under the Clean Air Act. He also authored a concurring opinion in Rapanos v. U.S. that provided more flexibility to federal agencies to protect a broader set of wetlands than his four conservative brethren would have.
These two Kennedy decisions are instructive now as we look back on Judge Kavanaugh’s record to evaluate his nomination. In Massachusetts, Justice Kennedy opened the courthouse doors to a challenge seeking greater environmental protection through a broad reading of the “standing” doctrine and out of respect for the role of states in federal environmental policy making. In Rapanos, Justice Kennedy’s opinion recognized the importance of federal agencies’ technical expertise in making individual, complex environmental policy decisions.
If there is to be a Justice Kavanaugh where Justice Kennedy once sat, what difference would it make for environmental law and policy? My students and I dug into Judge Kavanaugh’s decisions on the U.S. Court of Appeals for the D.C. Circuit to investigate how his past might influence the future of environmental regulations. Focusing on the cases in which he dissented from other members of that court, we discovered that Judge Kavanaugh has consistently ruled against federal environmental, public health and workers’ protections. At times, these decisions have sacrificed environmental quality while arguably increasing business uncertainty.