Alex Brandon/AP

Brett Kavanaugh Would Likely Keep the EPA on a Short Leash

“The earth is warming. Humans are contributing,” he told a federal courtroom two years ago. But that doesn't mean he'll be friendly to the EPA.

It probably isn’t surprising that Judge Brett Kavanaugh—a longtime member of the conservative movement whom President Trump nominated to the Supreme Court on Monday—has written about climate change.

What might be surprising is that he says it’s real.

“The earth is warming. Humans are contributing,” he told a federal courtroom two years ago, during a hearing about a major Obama climate policy. “There is a moral imperative. There is a huge policy imperative. The pope’s involved.”

He’s even inscribed this view in his judicial opinions. “The task of dealing with global warming is urgent and important at the national and international level,” he wrote in 2013.

Yet this is not necessarily good news for liberals. Kavanaugh has sometimes sympathized with the need for environmental protection. But because he considers global warming to be charged with a “huge policy imperative,” he’s skeptical that the EPA (or the executive branch) should be fighting it alone. And as a future justice, he’s likely to block the agency from doing so.

It is a portentous moment for U.S. environmental law. President Obama spent much of his last term trying to deploy the Environmental Protection Agency—and one of its animating laws, the Clean Air Act—against the threat of climate change. The Trump administration has devoted its energy to undoing this work, and environmental groups are trying to block him.

These two approaches were already likely to produce a clash at the Supreme Court in the next few years. But last month, the court’s great swing vote on environmental issues—Justice Anthony Kennedy—announced his resignation. Kennedy famously determined the direction of the nine-member court—joining its four liberals on some cases, its four conservatives on others—but he shaped few parts of American law as completely as he shaped the environment. Since joining the court in 1988, Kennedy voted in the majority in every environmental case in front of the court except oneaccording to Richard Lazarus, a Harvard Law professor who has argued more than a dozen cases in front of the justices.

His resignation throws the court’s right-leaning consensus into disarray. With Kennedy gone, conservative groups will likely sue the federal government, trying to exact new law from an emboldened conservative majority. Before the next presidential election, the Supreme Court could rule on the EPA’s authority to fight climate change, the geographical scope of the Clean Water Act, and even the constitutionality of the Endangered Species Act.

On these issues, Chief Justice John Roberts will function as the Court’s ideological center. Roberts has occasionally acted as a swing vote on some high-profile cases. It seemed likely that Trump would nominate another judge like Neil Gorsuch, a Federalist Society–minted conservative who was skeptical of regulatory agencies but who had rarely written about them.  

Instead, he picked Brett Kavanaugh.

Since 2006, Kavanaugh has served on the D.C. Circuit Court of Appeals, the federal appellate court that hears most EPA cases. During this time, Kavanaugh has been randomly assigned to hear dozens of EPA cases, meaning he has described his thinking about the environment across hundreds of pages of opinions.

“We probably have more of a record for Kavanaugh for environmental law than we do for anyone else in recent memory,” Lazarus told me. “Roberts came from the D.C. Circuit, Scalia came from the D.C. Circuit, Ginsburg did, Thomas did—but none of them had the same number of EPA cases that Kavanaugh’s had.”

He has not been a friend of the agency, though he often appears sympathetic to it. Kavanaugh has emerged as a courteous jurist who is intensely skeptical of whether the EPA can legally regulate new environmental threats, experts told me.

“He’s a kinder, gentler version of Antonin Scalia. I think his judicial philosophy is almost identical, but he’s more polite, and more able to make nice noises about the underlying policies,” said Ann Carlson, a professor of environmental law at UCLA.

“He’s a tough grader when it comes to a regulatory agency,” said Jonathan Adler, a law professor at Case Western Reserve University whose scholarship led to a major challenge to the Affordable Care Act. “He’s not looking for reasons to strike things down, and he’s not looking for broad Constitutional arguments to constrain agencies. But he clearly believes agencies have to dot their i’s and cross their t’s.”

Kavanaugh is particularly skeptical of new EPA programs. Like Scalia, he argues that the agency should only issue a new rule if Congress granted them explicit, precise rules to do so in a piece of legislation, like the Clean Air Act or the Clean Water Act.

During the Obama administration, Kavanaugh heard three major cases about the EPA’s authority under the Clean Air Act. In every case, he opposed the agency’s position.

“Why did he rule against the EPA in all three cases?” Lazarus asked. “He’s not like a Scalia—or, to some extent, an Alito—where you read their opinions and find there’s an antipathy, a hostility, to environmental law. Scalia is sometimes even sarcastic in his tone.”

“You never see this in Brett Kavanaugh,” he continued. “He is a really decent person, with enormous integrity, and there’s just not that kind of bent with him. But he is a conservative judge and a stickler for the notion of separation of powers. If he’s going to find an agency has sweeping regulatory authority, with significant economic or social implications, he’s going to want to find that Congress really intended it. He’s going to want to see specific language in the statute that says Congress really meant to give that authority away.”

“That is, in the abstract, a perfectly fair and neutral principle. But it does tend, in environmental law, to lead to one answer, which is: No.”

This isn’t necessarily because Kavanaugh loathes the cause of environmental protection, Lazarus told me. Instead, it’s because Congress hasn’t passed a major environmental law since it revamped the Clean Air Act in 1990. “When the EPA is trying to come up with a way of addressing a problem with some really creative and pragmatic solution, it has to use legal language that is 28 years old, in some cases almost 40 years old,” he said.

One of these three Clean Air Act cases provides a good example. It concerned the EPA’s ability to regulate “cross-state air pollution,” that is, pollution from coal-fired power plants in one state that blows downwind into another.

Judge Kavanaugh found that the agency couldn’t regulate that activity under the Clean Air Act. The case was appealed to the Supreme Court—and the justices disagreed. Both Chief Justice Roberts and Justice Kennedy joined the liberals in favor of the EPA, affirming the rule. “They were more willing to read into that [Clean Air Act] language some pragmatic authority for the EPA” than Kavanaugh was, said Lazarus.

In the two other major Clean Air Act cases, the Supreme Court eventually took the same side as Kavanaugh. “He somewhat already appears to be listened to [by the justices] on these issues,” Adler said.

Outside of those major cases, Kavanaugh has often but not always ruled against the agency. In 2013, he voted with the EPA, ruling that the agency was legally permitted to revoke a permit for mountaintop-removal mining. A year later, when a different legal question was argued in the same case, he voted against the agency.

If there is one bright spot for liberals, it’s that Kavanaugh may be just as skeptical of the Trump administration’s recent attempts at deregulation. “If he faces some Scott Pruitt–era rule that was kind of done quick and dirty, I don’t think the administration should expect him to rubber-stamp it,” Adler said. “He doesn’t grade federal agencies on a curve.”

“If you look at his jurisprudence on the D.C. circuit, I think he will be a stickler on procedural compliance,” agreed Lazarus.

One of those “big problems” where he may be more skeptical is climate change. In a September 2016 hearing, Kavanaugh seemed skeptical of the Obama administration’s Clean Power Plan, an EPA rule that aimed to reduce greenhouse-gas emissions from the power sector. It seemed clear that he considered that rule to go beyond the scope of the agency’s authority.

“It’s very clear he’s going to be significantly more conservative than Justice Kennedy, and his nomination does not bode well for climate-change regulation under the Clean Air Act,” said Carlson. “When Gorsuch was nominated, there wasn’t very much in his record. With Kavanaugh, the record’s really clear.”

“I think he would have decided against Massachusetts v. EPA,” she said, referring to the landmark 2007 Supreme Court case that found the EPA could regulate greenhouse gases under the Clean Air Act. “Everything points to the direction of a very narrow construction of the Clean Air Act, and that will seriously limit the EPA’s authority to regulate greenhouse gases in a way that makes a meaningful difference.”

A recent report found that Trump administration EPA rollbacks would cause the United States to miss its goals under the Paris Agreement on climate change, emitting hundreds of thousands more tons of carbon dioxide by 2025 than it once pledged.

Carlson also wondered if Kavanaugh’s stated belief in climate change carried an ulterior motive. According to a 1984 Supreme Court ruling, the judiciary branch must show some amount of deference to decisions made by agencies like the EPA. But the courts are allowed to discard that deference if the decision concerns a “major question” of political significance.

“I think he’s supporting his own judicial philosophy by saying that climate change is real and a big problem,” Carlson told me. “He’s saying, It’s a major question. Congress you should step up and act. This is not the place for EPA to be engaged in major policymaking.”

Adler, the conservative law professor, agreed that Kavanaugh might strike down future climate rules from the EPA.“I get that the environmental community looks at him and says, he’s going to get in the way of aggressive climate regulation unless Congress does something. And he might.”

“But if climate change is a problem, and it is; and if we should be doing something about it, which we should; then barring some massive technological breakthrough, unless and until Congress steps up to the plate, we’re kind of screwed,” he said.