How SCOTUS nominee Kavanaugh could enable Trump’s attack on environmental regulation

Brett Kavanaugh could have plenty of opportunities to change environmental law in the near future. (Photo illustration: Yahoo News; photos: AP, Getty)

When President Trump nominated Judge Brett Kavanaugh to the Supreme Court, attention immediately turned to the possibility that the new justice could provide the crucial vote to overturn abortion rights. But environmentalists also took note: There are dozens of active cases challenging President Trump’s rollback of regulations affecting air and water pollution, endangered species and toxic substances that could reach the Supreme Court, and the justice Kavanaugh would replace, Anthony Kennedy, was considered a swing vote on these issues.  If confirmed, Brett Kavanaugh, 53, could be on the bench for decades to come casting votes on environmental regulations.

Richard Lazarus, a professor of environmental law at Harvard University, said Kavanaugh is unlikely to fill Kennedy’s “swing vote” role in environmental cases. He said Kavanaugh will likely be more like Chief Justice John Roberts — and probably more conservative when they do differ.

“Of course, to the extent that there would be five more conservative justices on the court should Kavanaugh join the court, any one of those five strictly speaking has the controlling vote,” Lazarus told Yahoo News. “My point only is that there is no particular reason to anticipate that a Justice Kavanaugh would, like Justice Kennedy in the past, be more likely than others to wander over to the more ‘liberal’ side.”

Kavanaugh’s record on the U.S. Court of Appeals, where he joined the D.C. Circuit in 2006, can tell only so much about how he’ll act on the Supreme Court. Though there are several instances in which he sided with environmentalists, such as ruling in favor of the Natural Resources Defense Council (NRDC) on a case involving pollution from cement manufacturing, Kavanaugh was often at odds with the Environmental Protection Agency (EPA) during the Obama administration over interpretations of legislation and the rule-making process. He’s said that climate change is a serious issue but that he thought the EPA had exceeded its jurisdiction several times.

Since Congress hasn’t passed much meaningful climate legislation recently, Obama resorted to interpreting existing laws from decades ago to handle 21st century threats. Kavanaugh, based on his record, would be likely to take the view that new regulations would require explicit approval from Congress.

Jamison E. Colburn, a professor of environmental law and policy at Penn State, said it isn’t exactly clear how Kavanaugh’s tenure as an appellate judge would translate to the Supreme Court, because they aren’t the same thing. As a justice, Kavanaugh might feel freer to make precedents and less bound by them than he was on a lower court.

“Every one of the current complement of justices has shown they think of their court as a ‘co-equal branch’ governing the American people — not as just another court,” Colburn told Yahoo News.

There have been many important Supreme Court decisions that came to a 5-4 vote this year alone. Kavanaugh could have plenty of opportunities to change environmental law in the near future. And if Lazarus is correct, Kavanaugh would not so much be the deciding vote on environmental issues as a factor pushing the court firmly to the right.

The highly endangered dusky gopher frog. (Photo: Western Carolina University/John A. Tupy/USDA)

The Endangered Species Act

The first environmental case the Supreme Court will take when it reconvenes in October will be Weyerhaeuser vs. U.S. Fish and Wildlife Service. It concerns a standoff over roughly 1,600 pond-filled acres in Louisiana and whether the Endangered Species Act of 1973 (ESA) permits officials to include private land in critical habitat designations.

Rebecca Riley, a senior attorney for NRDC, said this case gets to the heart of what the Endangered Species Act is all about: protecting habitats so species can recover and thrive. In this case, the species is the highly endangered dusky gopher frog — there are only about 100 left. The question is whether it’s enough for the Fish and Wildlife Service to just protect the frogs or if it can also protect what’s called “unoccupied habitats.” Right now, the frog only lives in Mississippi, but the Fish and Wildlife Service has designated another “critical habitat” in Louisiana that could be restored as a place where the species could recover.

“The reason this is so important is because it’s not enough to protect just the areas where a highly endangered population lives now. We also have to protect areas where it could live in the future. Otherwise, you won’t be able to restore the population to a healthy level,” Riley told Yahoo News.

But a lumber company, which holds a lease on the land that doesn’t expire until 2043, filed a lawsuit claiming that this designation could result in $34 million in losses. The lawyers for the lumber company argued that because the Louisiana area was degraded and needed to be restored, it didn’t qualify as a critical habitat.

Riley fears that Kavanaugh will prioritize “the lumber company’s interests over the clear requirements of the law.” She said this particular case is about one part of the ESA, the critical habitat protection, but that the law is under constant attack.

“There were nine bills introduced in the House just last week designed to weaken the protections of the Endangered Species Act,” Riley said. “They cover a whole range of protections.”

Pony Ranch Pond in Mississippi was adopted as a new home by dusky gopher frogs a few years ago. (Photo: Western Carolina University/John A. Tupy/USDA)

Protected waters

Kavanaugh might have the power to decide that far fewer bodies of water would be protected under 2015’s Waters of the United States (WOTUS) Rulemaking. Also known as the Clean Water Rule, it was intended to bring clarity where there had been disagreement and confusion by defining which bodies of water fall under federal jurisdiction.

Rapanos v. United States in 2006 challenged the jurisdiction of the federal government in regulating isolated wetlands under the Clean Water Act of 1972. In a plurality opinion, the four more conservative justices argued for a more restrictive definition of “navigable waters” than the liberal justices, and  case was remanded to the lower court.

“Kennedy’s opinion in Rapanos was not only a head-scratcher for the bar and lower courts,” Colburn said. Instead of joining either opinion, Kennedy agreed with the court that the case should be sent back to a lower court but wrote a completely different opinion outlining which nonnavigable waterways should fall under the Clean Water Act’s jurisdiction: only those that have a “significant nexus” to a traditional navigable waterway.

This formed the intellectual basis for the U.S. Army Corps and EPA’s water jurisdiction ever since, as well as the Clean Water Rule in 2015. According to Colburn, Kennedy’s opinion could help predict outcomes should any challenge go up to SCOTUS as long as he is on the court.

Colburn said authorities figured it would go this way: Any assertion of jurisdiction conforming to Kennedy’s theory would get his vote plus the dissenters’ votes.

“With Kavanaugh there, one must suppose that there are five reliable votes to back up what Justice Scalia wrote in his opinion in Rapanos — which is a substantial withdrawal of CWA jurisdiction, resulting in quite literally no CWA ‘waters’ in many western regions (among other things),” Colburn said. “Scalia’s reasoning was purportedly ‘textualist’ and a reflection of the supposed Tenth Amendment concerns for states’ dignity in reading the CWA as the dissenters did.”

Limits on carbon emissions, which have the effect of encouraging the spread of wind power, are likely to be challenged in the Supreme Court. (Photo: Getty Images)

Clean Power Plan

Before resigning, former EPA Administrator Scott Pruitt described replacing the Obama-era Clean Power Plan, which set the country’s first limits on carbon emissions, as one of his top priorities for 2018. The EPA began the process of rescinding the Clean Power Plan last year and is taking input on how to proceed.

Gerald Torres, a professor of environmental law at Cornell Law School, said the Clean Power Plan will likely rise to the Supreme Court in one form or another. He said the court might have to decide whether a federal agency has the legal authority to construct a plan like the one Obama had envisioned without any additional direction from Congress.

“I unfortunately don’t have a lot of hope that it will survive,” Torres said.

According to Torres, Kavanaugh will be confronted with the question of whether Section 111 of the Clean Air Act constitutes authority for the EPA to regulate carbon dioxide, which is a pollutant in the sense of contributing to global warming. When the Clean Air Act was passed in 1963, climate change wasn’t on the legislative agenda, and environmental regulations were mostly directed at specific threats to human health, such as smog. The court ruled in 2007, by a 5-4 decision in Massachusetts v. EPA, that carbon dioxide could be regulated, but the question may come up again.

“I suspect that he will read those sections a little differently. If he and the fellow justices decide the Clean Air Act is insufficient to support something like the Clean Power Plan it puts the ball back in Congress’s court. Now, that’s not necessarily an uplifting thought, but, in some ways, it could be that that’s where it belongs,” Torres said.

Solar panels in a field of sunflowers. (Photo: Getty Images)

Civil suits

Colburn expects Kavanaugh to be more inclined than Kennedy to limit the right (the “standing”) of citizens to file lawsuits to enforce environmental regulations. Colburn said this could be a “cross-cutting difference of real significance.”

“Without citizen suit standing, citizen suits checking EPA and other agencies simply go away,” he said.

Torres said environmentalists have long relied on citizen suits to compel the EPA and other agencies to enforce their own regulations.

“One of the limitations of course has always been standing. Are these the correct people to bring the case in front of the court?” Torres said. “We saw a tidying up of standing requirements over the last generation of environmental litigation. I suspect he’ll cast a hard look at the standing doctrine.”

According to Torres, a justice should understand that Congress has recognized the important role citizens play in enforcing environmental statutes, but “I don’t think that’s how [Kavanaugh] will read it.”

Trump has called Kavanaugh a “judge’s judge,” and this appears to be an apt description. But if history is any indicator, he might not defer quite as much to precedent as he did on the D.C. Circuit. For instance, Colburn said he would be willing to bet that Kavanaugh wouldn’t necessarily feel bound by the opinion in Massachusetts v. EPA that the Clean Air Act’s definition of “pollutant” should be applied to greenhouse gases.

Torres agreed the power one wields as a circuit court judge, while enormous, is different. He said the pressures and cognizance of a judge’s actions on the Supreme Court can and likely will change their decision-making.

“You see every justice change to one degree or another,” he said.

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