Just as corporate attorney Scott Pruitt has been ousted from the helm of the Environmental Protection Agency, President Trump has nominated a potentially more dangerous right-winger to the Supreme Court. And with Brett Kavanaugh’s confirmation to the highest court in the land seeming more and more likely, environmental advocates fear he may enshrine Pruitt’s scorched-earth policies for generations to come.
The conservative Judge Kavanaugh has built his career as a jurist who is both highly intelligent and “highly skeptical of regulation that protects the environment, ensures worker safety, and prevents consumers from being defrauded by the financial services industry,” according to Rena Steinzor, University of Maryland law professor and advocate on regulatory issues. “If confirmed, he will take Justice Scalia’s place leading the war on regulation.”
In a case brought by the Sierra Club to challenge the second Bush administration’s weakening of provisions of the Clean Air Act, Kavanaugh, then on the US Court of Appeals for the District of Columbia, sided with the administration’s right-wing EPA, interpreting the law narrowly to grant maximum leeway to the White House to limit state and local government’s authority to tighten monitoring requirements for air polluters. Kavanaugh essentially argued in his dissent that the agency had the authority to prevent, say, a city in Southern California from passing an ordinance against a local factory’s emissions, regardless of local environmental conditions or the public-health risks.
Similarly, in Howmet Corp. v. EPA, Kavanaugh broke to the right of the conservative majority in a case involving chemical-waste dumping. The majority deferred to the agency’s authority to regulate the disposal of fertilizer waste in that case, but Kavanaugh thought the agency had overreached by moving to impose the Resource and Recovery Act rules on potassium hydroxide when it was being shipped to a different site for use as fertilizer. Just because the toxic chemical was being “repurposed” as fertilizer, Kavanaugh concluded, didn’t make it a waste material per se. In other words, putting a chemical-waste product to good use by using it to poison the environment in a different way shouldn’t be subject to additional regulations.
Often ruling to the right of his colleagues, Kavanaugh is known for ideologically favoring pro-business, anti-regulation policies, and according to Patrice Simms, vice president of litigation at EarthJustice, he “believes that federal agencies should be more inherently political—which would compromise both the integrity and continuity of their decision making processes.” He’s zealous about applying “cost-benefit analysis” when evaluating regulations—an approach that weighs the financial “harm” to businesses against the overall benefit to the public welfare, whether it’s protecting an endangered owl species from habitat erosion or allowing cities to set their own air-pollution standards.