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.
EarthJustice’s analysis of Kavanaugh’s opinion records indicates that he has shifted the judiciary rightward through anti-regulatory decisions that “move the law further toward requiring cost balancing at every stage of environmental decision-making,” a legal rationale that “tends to make it much harder for an agency to protect public health and safety.” His rulings suggest he also tends to assess the benefits of regulation in a piecemeal way, while prioritizing the “benefits” to consumers from cheap energy or the profits of unregulated environmental exploitation—even when industrial processes cut costs by dumping toxic waste on poor black neighborhoods, or prevent communities from raising local environmental regulations above the national standard.
In a lawsuit over proposed revisions to a mercury air-emissions standard, the question came before the court about the EPA’s authority to update the criteria used on cost-benefit assessments. Rather than apply the “precautionary principle” and allow the consideration of new information on mercury pollution to tighten regulations, according to EarthJustice, “Kavanaugh argued that they should be prohibited from doing so—an outrageous proposition that would limit the agency’s ability to justify critically important human health and environmental protections, all to avoid affecting corporate profit margins.”
Kavanaugh’s judicial philosophy might be summed up in the stripped-down landscapes of the Appalachian wilds today. In a legal challenge to mountaintop-removal mining, an extremely destructive form of extraction that involves tearing up mountains to suck coal from below the surface, Kavanaugh rejected the majority view on a permit granted to the coal operations of Mingo Logan. Instead, he contended that the “EPA considered the benefits to animals of revoking the permit, but EPA never considered the costs to humans–coal miners, Mingo Logan’s shareholders, local businesses, and the like–of revoking the permit. In my view, EPA’s utterly one-sided analysis did not come close to satisfying the agency’s duty…to consider and justify the costs” of revoking the mining permit. To Kavanaugh, the true public interest at stake lay in the “health” of industry profits—even at the cost of epidemic lung disease in the mining sector, or escalating waste and pollution levels that result from artificially low electricity prices.
If Kavanaugh got his way on the Mingo Logan permit, “his opinion would have let the company continue to devastate the water that those Appalachian communities rely on,” according to Michael Kelly of the advocacy group Clean Water Watch. When it comes to understanding the real-life impact on people and nature, Kavanaugh’s appreciation of the “cost to humans” seems to contemplate corporations as the people who matter most—placing “the needs of polluting industries over the potential and real harm to communities and water,” in Kelly’s view. A Kavanaugh court threatens to grant “far too much deference to industries and certain states fighting commonsense protections from EPA and other agencies.”
Since Supreme Court nominations are a lifelong affair, says Simms, “The appointment of new justices to the Court affects the very nature of our democracy. These judges don’t just rule on individual cases…they help to fundamentally define the landscape of American law.” That landscape will shrink further under the long shadow of corporate polluters, as Kavanaugh calculates new ways to zero out the net cost of the free market.