Brett Kavanaugh is skeptical of climate change regulations but not ‘dogmatic,’ experts say
But conservatives who favor a deregulatory approach at EPA should not expect Kavanaugh to automatically vote in their favor, experts say.
“Kavanaugh is temperamentally and philosophically skeptical about the exercise of government power, especially when agencies act expansively, and find new powers in longstanding laws,” Jody Freeman, the founding director of the Harvard Law School Environmental and Energy Law Program, told the Washington Examiner.
“But I don’t think his pick means it’s open season for deregulation,” Freeman added.
Legal experts have said the EPA under Pruitt has not provided sufficient evidence and data to support its efforts to delay, weaken and repeal various regulations, which have already let to setbacks in court.
In July, for example, a federal appeals court blocked the Trump administration from eliminating an EPA rule limiting methane emissions from oil and natural gas wells.
Freeman said Kavanaugh would not stand for careless deregulation.
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“He is a ‘by the book’ judge on procedural regularity, meaning he won’t let agencies get away with taking short cuts,” she said. “So if the next few years bring careless and sloppy deregulation without a sufficient record and against the weight of the evidence, I don’t think the Trump administration should count on his vote.”
Kavanaugh’s long record on environmental opinions shows he is “persuadable, not dogmatic” Freeman said.
But he has voted to invalidate some major EPA pollution rules in dissents, and supports strong judicial oversight in reviewing the actions of administrative agencies, experts say.
“He has a few approaches that make it more likely he will be hostile to climate regulatory programs,” Lisa Heinzerling, an environmental law professor at Georgetown University, told the Washington Examiner. “He has said agencies don’t have the power to issue major rules without clear congressional authorization. If he says that, it’s an easy way to say, the EPA does not have authority to regulate the climate, or it’s an easy way to reject further extensions of EPA’s regulatory authority.”
With the U.S. Court of Appeals for the District of Columbia, Kavanaugh in 2016 heard oral arguments for the lawsuit against the Obama administration’s Clean Power Plan filed by states, companies, and industry groups.
The Clean Power Plan was former President Barack Obama’s signature initiative to combat climate change, targeting carbon pollution from power plants by requiring states to reduce emissions by 32 percent below 2005 levels by 2030.
Kavanaugh, in his comments, seemed to argue that Obama based the Clean Power Plan on an expansive interpretation of the Clean Air Act not allowed by the law. He also expressed sympathy for Obama’s efforts to manage climate change, and acknowledged humans are causing global warming. But he said aggressive action would require Congress to expressly authorize it.
“The policy is laudable,” Kavanaugh said. “The earth is warming. Humans are contributing. I understand the international impact and the problem of the commons. The pope’s involved. And I understand the frustration with Congress.”
He added: “If Congress does this, they can account for the people who lose their jobs. If we do this, we can’t.”
The Supreme Court eventually stayed the Clean Power Plan, preventing it from being implemented, but never ruled on its merits.
The EPA under the Trump administration is in the process of repealing the Clean Power Plan, and writing a more narrow replacement.
In another case from 2014, Kavanaugh again argued the EPA must consider the economic impact of regulating power plant emissions.
The energy industry, in the case White Stallion Energy Center LLC v. EPA, challenged a 2012 regulation under the Clean Air Act that required oil and gas power plants to reduce emissions of mercury and other pollutants.