BY MARIA VIRGINIA OLANO, JULY 10th 2018
Our judicial system is often regarded as an ironclad defender of our rights, health and wellbeing, but this is likely to become jeopardized as a long-time skeptic of climate change and business regulations makes his way to the highest court of the land.
Judge Brett Kavanaugh, Trump’s nominee to replace Justice Kennedy on the Supreme Court, has resided on the U.S. Court of Appeals for the District of Columbia Circuit since 2006, where he repeatedly questioned environmental regulations issued by former President Barack Obama and the legal reach of the U.S. Environmental Protection Agency (EPA).
If confirmed by the Senate, the 53-year-old judge could serve for decades and have a major influence over environmental regulations issued by future presidents, long after President Donald Trump has left office.
A dangerous track record
The former clerk for Kennedy and staff secretary for President George W. Bush has been unfriendly to environmental regulations, including pollution, climate, and conservation. This raises some very serious concerns about the future of climate action in an already less-than-ideal political climate.
Last year, Kavanaugh wrote a ruling that struck down the regulation of hydrofluorocarbons (HFCs) used in spray cans and air conditioners, which contribute to climate change.The 2015 EPA rule effectively banned 38 individual HFCs or HFC blends, substances that are thousands of times more potent greenhouse gases than carbon dioxide. Phasing these gases out had been a key part of the Obama administration’s plan to address climate change. “Climate change is not a blank check for the President,” Kavanaugh wrote for the majority opinion in the ruling.
In a different case in 2014, he argued that the EPA should take into account monetary costs when deciding on emissions regulations for power plants. While the court upheld the EPA-set standards for mercury and other pollutants from utilities, in his dissent Kavanaugh wrote that,”it is unreasonable for EPA to exclude considerations of costs in determining whether it is ‘appropriate’ to impose significant new regulations…” This is not only flawed thinking, but an extremely dangerous viewpoint to allow in the Supreme Court, which could be making decisions on the regulation of harmful pollutants for decades to come.
In 2012, he again dissented from the Court of Appeals’ decision to uphold the Obama administration’s first efforts to regulate greenhouse gas emissions, arguing that the EPA had “exceeded its authority in seeking to regulate carbon emissions under a specific EPA program.”
Kavanaugh has also been unfavorable to the protection of endangered species. In 2011, he ruled that the sighting of four endangered fairy shrimp on a 143-acre parcel of land near San Diego did not make it “critical habitat” under endangered species rules. A similar case involving the designation of critical habitat for a frog species in Louisiana is now on the court’s fall docket.
Although Kavanaugh has acknowledged climate change as a threat and a possibly man-made issue, his rulings in the past give little hope for what his position will be regarding environmental issues if elected to the Supreme Court. It could, in fact, be a major blow to the legal architecture that has been created surrounding the regulation of pollutants and protection of the environment.
What this means for future rulings
The Supreme Court, as the highest court in the land, serves to protect the American public and allow it to hold government and private actors accountable to the law; it also upholds the duty of congress to enact laws that are in line with the public interest. Electing a justice who has in the past sided with business interests in the face of public harm, is a very worrisome prospect.
In 2007, the SCOTUS justices ruled in the landmark climate change case Massachusetts v. EPA. The liberal wing of the court, joined by Justice Kennedy, embraced the science of climate change and upheld the responsibility of the EPA to regulate carbon dioxide and other greenhouse gases (GHGs) as pollutants under the Clean Air Act. This was a massive win for environmental action, one that could be reversed by the new right-leaning court. This is especially worrying given the dissenting opinions of the case, notably Justice Scalia’s dissent, which blatantly went against climate science. As a member of Federalist Society and as a textualist similar to the late Justice Antonin Scalia, Kavanaugh may bring back such views — only now his opinion would be in the majority.
It has never been more important to be able to hold corporations and government accountable for protecting the air we breathe, the water we drink, and consequently, our overall health and wellbeing. There are many reasons to be concerned about Kavanaugh joining the Supreme Court, tipping the bench solidly to the right— it seems environmental protection is one of them.
MARIA VIRGINIA OLANO, COMMUNICATIONS DIRECTOR
