Two years ago, the second highest court in the land upheld a controversial decision by the Environmental Protection Agency to block a permit for what would have been one of West Virginia’s largest strip-mining operations.
The new coal mine promised so many jobs that in 2010 the state’s Democratic governor — Joe Manchin III — sued the Obama administration over the EPA’s decision to stop the project.
The only dissenter in the 2-1 decision in 2016 was Judge Brett Kavanaugh, who President Trump picked Monday to take Justice Anthony Kennedy’s spot on the Supreme Court. And now Manchin is a senator for West Virginia — and one of a handful of moderates in the tightly split chamber who will decide Kavanaugh’s fate.
Kavanaugh’s dissent is illustrative of the pro-business approach to environmental law that he cultivated throughout his dozen years on the U.S. Court of Appeals for the District of Columbia.
If confirmed, his limited-government jurisprudence will swing the court even further to the right.
Kavanaugh has insisted on upholding the expansion of regulatory authority only when there is clear evidence Congress intended to do so.
“It is a perfectly legitimate neutral principle for interpreting federal statutory authority,” said Richard Lazarus, a professor of environmental law at Harvard. “But as applied to EPA, it had led Kavanaugh repeatedly and consistently to rule against EPA.”
Policing regulatory overreach, at least as conservative legal thinkers see it, was once the job of the late Justice Antonin Scalia.
Robert Percival, an environmental law professor at the University of Maryland, said Kavanaugh “would now inherit Scalia’s position.”
While the right-leaning high court often reins in government regulation, Kavanaugh has often taken that approach even further than many of the court’s current conservatives.
For example, the D.C. Circuit struck down an Obama administration program regulating air pollution that drifts across state lines. Kavanaugh, writing for the majority, argued the EPA exceeded its authority under the Clean Air Act in crafting the so-called “good neighbor” provisions.
But in 2013, the Supreme Court’s four liberals joined with Kennedy and Chief Justice John G. Roberts Jr. to reject Kavanaugh’s interpretation.
And just last year, the lower court also ruled against another Obama-era EPA program that even the Trump administration had yet to fully challenge, requiring manufacturers to replace a class of potent greenhouse gases called hydrofluorocarbons with other substances.
“However much we might sympathize or agree with EPA’s policy objectives,” Kavanaugh wrote, “EPA may act only within the boundaries of its statutory authority.”
Kavanaugh has actually acknowledged the seriousness of man-made climate change when speaking from the bench. “The earth is warming,” he once said. “Humans are contributing.”
But when the Obama administration sought to use old environmental statutes to address that and other emerging environmental issues, Kavanaugh tried to strike the actions down.
Instead, Kavanaugh has pushed the EPA to consider the financial impact of its actions. “The bottom line is that EPA considered the benefits to animals of revoking the permit,” he wrote in his dissent in the West Virginia coal mine case, “but EPA never considered the costs to humans.”
Under former Administrator Scott Pruitt, the EPA is already reviewing how it adds up economic pros and cons of new rules. Kavanaugh “is a thought leader in deregulation,” said Abigail Dillen, vice president of litigation for climate and energy at Earthjustice. “I think his writing on it gave it significant momentum.”
Kavanaugh has had ample opportunity to promulgate his judicial philosophy. “His record is longer because the DC Circuit hears relatively more cases involving challenges to agency regulatory actions,” said Jody Freeman, also a professor at Harvard Law School.
More than 30 percent of filings in that court are administrative appeals, nearly double the average nationwide, according to one study. Senate Majority Leader Mitch McConnell (R-Ky.) reportedly tried to nudge Trump away from Kavanaugh because his lengthy record not only on the bench but also in President George W. Bush’s White House makes his confirmation more arduous, though still likely.
For decades, the Supreme Court has generally hewed to a legal doctrine giving agencies wide berth in interpreting federal statute, much to the chagrin of conservatives wishing to rein in government.
Trump’s first nominee to the court, Justice Neil Gorsuch, has argued for years in legal opinions that the principle, called Chevron deference after a 1984 case involving the oil company, needed to be revisited.
While Trump’s new nominee has not been “vocal” about undoing the doctrine, “Gorsuch may find a comrade in his quest to overturn Chevron deference in Judge Kavanaugh,” said Thomas McGarity, a professor of administrative and environmental law at the University of Texas.
Legal experts see Kavanaugh also joining conservatives to curtail the application of anti-pollution rules on wetlands and intermittent streams. Ever since the passage of the Clean Water Act in the 1970s, the court has struggle to define the extent of the federal government’s jurisdiction under the law. In 2006, Kennedy staked out a middle-ground position between the court’s liberals and other conservatives in an unusual 4-1-4 split.
“I’d be surprised if Justice Kavanaugh didn’t decide it differently than Justice Kennedy,” McGarity said.
