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.

First, Judge Kavanaugh has rejected efficient environmental regulations advanced by expert agencies, even where industry players support the agency’s approach. Although Judge Kavanaugh’s decisions may at times benefit individual businesses or a whole industry, increased judicial interference with agency action can result in unpredictable and fragmented regulatory schemes. Take, for example, EME Homer City Generation, LP v. EPA, where several states, local governments and industry groups challenged an EPA rule that controlled the spread of air pollution across state lines. The rule would have ameliorated an interstate air quality problem by developing a unified regulatory approach to regional sources of pollution to meet air quality targets. But Judge Kavanaugh refused to defer to the EPA and held that the rule had to be significantly reworked so that it operated solely on a state-by-state basis.

Judge Kavanaugh’s decision, had it not been significantly reversed by the U.S. Supreme Court, would have made the regulation less effective and more costly to implement. That’s partly because businesses would have needed to work with a patchwork of regulations and requirements that differed from state to state, driving up compliance costs.

Second, Judge Kavanaugh’s approach to the doctrine of “standing” is troublesome. Standing represents the idea that courts only have authority to hear lawsuits by plaintiffs who can show an injury-in-fact that the defendant’s conduct caused and that a court can redress. In several of his D.C. Circuit opinions, Judge Kavanaugh has viewed standing broadly for corporate entities but narrowly for plaintiffs seeking more environmentally protective outcomes.

While some businesses may take comfort in this approach, industry is not monolithic. Regulations create winners and losers in industry. A broad view of standing for companies could allow some companies to use regulatory litigation as a strategy to gain economic advantage—either by seeking to compel or to defend regulations that hamstring their competitors’ businesses or related industries.

Take Judge Kavanaugh’s dissent in Grocery Manufacturers Association v. EPA. In the case, industry groups—including petroleum interests—challenged EPA’s decision to allow fuel mixtures with higher concentrations of ethanol. Judge Kavanaugh argued that EPA’s decision effectively forced petroleum interests to adopt these costlier ethanol fuel mixes. But EPA did not actually require any specific action by the industry—it simply allowed higher blending levels in the market. No other judges on the D.C. Circuit shared Judge Kavanaugh’s broad willingness to find standing for an industry that didn’t need to comply with a rule and wouldn’t have suffered from it. The litigation created uncertainty for those in related industries that would have needed to make investments in light of EPA’s proposed rule.

One can’t know for sure how a Justice Kavanaugh would vote on all of the environmental cases that come before the court. But his record does indicate that he is likely to provide a more reliably pro-industry, anti-regulatory and anti-environmental vote on the U.S. Supreme Court than Justice Kennedy.

What might this mean for issues that come before the highest court? As one example, let’s look at the Trump administration’s freeze of fuel economy standards and revoking of California’s right to set more stringent standards under the Clean Air Act. Justice Kennedy might have looked more sympathetically at California’s specific air quality challenges, the expertise of the California Air Resources Board, and an individual state’s authority to solve its own problems. In contrast, Justice Kavanaugh is more likely to defer to determinations by the EPA Administrator that would lead to denial of the waiver and less protective motor-vehicle emissions-standards.

Judge Kavanaugh has demonstrated a consistent anti-regulation approach when it comes to environmental protections—siding against thoughtful agency rulemaking processes and allowing industries that have little reason to challenge a rule to in fact challenge them. The U.S. Senate should review this record very carefully as it considers his nomination to the highest court.

Kevin Carlson, Benjamin Segal and Robert Weinstock assisted in drafting this post and the Clinic’s report, A Review of Judge Brett Kavanaugh’s Environmental Jurisprudence.

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