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What Brett Kavanaugh Could Mean for Climate Regulations: ‘Extensive record of skepticism toward govt’s powers to act on climate change’

Trump’s Supreme Court nominee has a history of opposing regulations Congress didn’t explicitly authorize. That could be a problem for greenhouse gas policies.

In his dozen years on the federal appeals court that hears the most disputes over government regulatory power, Judge Brett Kavanaugh has compiled an extensive record of skepticism toward the government’s powers to act on climate change.

In particular, while Kavanaugh has repeatedly voiced the belief that global warming is a serious problem, he has challenged the argument that Congress has given the Environmental Protection Agency authority to do something about it.

That means the 53-year-old jurist, if approved by the Senate to fill the vacancy left by Justice Anthony Kennedy, could harden the high court for the next generation as a blockade to climate action that isn’t explicitly mandated by Congress. Though Kennedy was hardly a reliable vote for environmental protection, he was the pivotal vote in Massachusetts v. EPA, the 5-4 decision that in 2007 established that greenhouse gases were a pollutant that fit “well within” the EPA’s authority to regulate under the Clean Air Act.

“Judge Kavanaugh isn’t anti-environmental, but he tends to be anti-agency,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “He’s often struck down regulation that he didn’t think Congress had authorized explicitly enough. He reads statutory authority very narrowly and that is a major concern for things like the Clean Power Plan,” President Barack Obama’s signature climate initiative.

The Clean Power Plan is dormant as the Trump administration works on a replacement, and it is uncertain if Kavanaugh would ever face it as a justice. But Kavanaugh’s views could come into play on a wide range of environmental issues where the executive branch is grappling with advances in scientific understanding of threats to public health and environment on which Congress has been unable or unwilling to act.

“Although he takes as craftsmanlike and non-controversial an approach as available, he is often willing to put blinders on to support his interpretations,” says Joseph Goffman, executive director of theEnvironmental & Energy Law Program at Harvard Law School.

“A lot of what the Clean Air Act directs—or I’d say, mandates—the EPA to do is to look at its legal authority as sufficiently expansive to take into account of changing science about public health, pollution and technology,” said Goffman, who worked as a lawyer in the Obama administration’s EPA during the crafting of the Clean Power Plan and other initiatives to rein in greenhouse gas emissions. “In order to support his interpretation, [Kavanaugh] simply has to ignore that reality.”

Kavanaugh’s Words on Clean Power Plan, HFCs

Kavanaugh articulated his narrow reading of the law during oral arguments in September 2016 on the Clean Power Plan. Kavanaugh said the Clean Air Act was “a thin statute” to support the rule, likening the program for reining in carbon emissions from electric power plants to President George W. Bush’s post-9/11 move to detain a suspected enemy combatant without due process—an effort that the Supreme Court ruled unconstitutional.

“War is not a blank check,” Kavanaugh said. “Global warming is not a blank check, either, for the President.”

Kavanaugh also wrote the majority opinion last year striking down another important Obama climate rule—EPA’s regulation of HFCs, potent greenhouse gases used in cooling—as outside the agency’s authority under the Clean Air Act.

“EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate,” Kavanaugh wrote. “… Congress’s failure to enact general climate change legislation does not authorize EPA to act. Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change.”

The Trump administration has appealed that decision—a case the Supreme Court has yet to decide whether to take. Legal experts say if the court does take the case, Kavanaugh almost certainly would recuse himself.

Striking Down Cross-State Pollution Rules

Goffman said one of Kavanaugh’s most telling environmental opinions was his 2012 decision to strike down the EPA’s rules for addressing cross-state pollution from power plants, a decision that was overturned by a 6-3 Supreme Court, including both Kennedy and Chief Justice John Roberts in the majority.

“He looked at a technical issue that involved an analysis both of atmospheric chemistry and economics, and substituted the judgment of EPA’s with his own,” Goffman said. “To me, it’s a ‘tell’ of his anti-EPA mind set.”