Newly confirmed Supreme Court Justice Brett Kavanaugh, who brings a long record of pro-business and anti-regulatory opinions from his tenure on an appeals court, will likely tip the high court’s balance in favor of narrower interpretations of environmental law.
Kavanaugh’s confirmation centered more on allegations of sexual assault and temperament than his judicial record. But a close look at his rulings during his dozen years on the DC Circuit Court of Appeals reveals strong and well-crafted opinions that restrain government action on pollution and wild habitat safeguards.
The DC Circuit Court is the second most important court in the country, after the Supreme Court. Kavanaugh has written about 300 opinions, of which perhaps a quarter either dealt directly with environmental law or concerned administrative law — that is, issues that relate to how government agencies like the EPA interpret and implement legislative statutes.
Kavanaugh styles himself after the late Justice Scalia, who called himself a textualist or a strict constructionist, explains Vermont law professor Pat Parenteau.
“He looks to the text of a statute when he's asked to interpret it, and if the text isn't clear enough, oftentimes he will rule against an agency's interpretation,” Parenteau says.
"In the environmental arena, that oftentimes means that rules written to increase the level of protection for public health and the environment don't often fit squarely within the plain text of a statute," Parenteau continues. "Statutes are [often] general and vague. Agencies try to interpret them as best they can."
Kavanaugh believes government agencies require explicit direction from Congress when it comes to writing rules that impose costs on American businesses, so he tends to rule against environmental laws that offer broad protections to public health or the environment, Parenteau says.
While still on the Circuit Court, for example, Kavanaugh ruled that EPA does not have the authority to require a substitute chemical used in refrigerants and fire prevention devices that have been found to be a potent greenhouse gas. EPA had adopted the use of this chemical because it doesn't deplete the ozone layer but then decided that substituting a greenhouse gas for an ozone-depleting gas was not good policy.
“Kavanaugh looked at the language of the Clean Air Act and said, ‘No, EPA's authority is limited to substituting one ozone deplete for another, but it can't take climate change into account when it looks at alternatives,’” Parenteau explains.
"That's an example of a very strict approach to interpreting the law, the net result of which is that a virulent greenhouse gas is now on the market that was supposed to be a remedy for ozone depletion — but now it's going to cause climate change."
With Justice Neil Gorsuch and now Kavanaugh solidifying the conservative wing of the court, any close statutory or constitutional questions that might have previously come down 5 to 4 in favor of broader environmental protections will likely swing the other way, Parenteau says.
Consequently, in terms of the US government's ability to address the threat of climate change in the coming years, “we have to be realistic," Parenteau believes.
“If we're going to make any progress on climate change in the United States, it's going to have to come through the legislative process,” he maintains.
"That means a change in the makeup of Congress, both the House and the Senate. Under the current majority, there really is no realistic hope, I don't believe, of meaningful action on climate change," Parenteau says. "It's going to take a major change in electoral politics in the United States. We may begin to see some of that in the mid-term elections in November. Frankly, I hope we do, but time is short and I don't think we can rely on the courts in the United States … to deliver the kind of relief we need."