Kavanaugh’s votes could rein in EPA; Sierra Club says judge ‘would be a disaster for the environment’

WASHINGTON - In its most important environmental ruling of recent decades, the Supreme Court decided in 2007 that the greenhouse gases blamed for warming the planet can be regulated as air pollutants under the Clean Air Act of 1990.

It was a pivotal opinion that opened the door for the Environmental Protection Agency to impose new regulations on autos, power plants, manufacturers and others, to address climate change as well as the dirty air targeted by the original law.

But it came on a 5-4 vote, with Justice Anthony Kennedy joining the four liberals and over a dissent by Chief Justice John Roberts.

Now as federal appellate Judge Brett Kavanaugh seeks to replace the retiring Kennedy on the Supreme Court, Kavanaugh's 12-year record of skepticism toward such agency actions puts the landmark decision and other environmental protections at risk. Environmentalists fear that if Kavanaugh joins the court, he would vote to block anti-pollution regulations for decades, long after President Donald Trump has departed.

"He would be a disaster for the environment," said Pat Gallagher, legal director for the Sierra Club. "He has a disdain for regulation, particularly from the EPA. Kennedy was the swing vote in this area. If we have to wait for Congress to act on climate change, we are doomed."

While serving on the U.S. Court of Appeals for the District of Columbia, Trump's nominee for the Supreme Court has been a steady "no" vote on climate change regulations.

When joined by fellow conservatives, he wrote opinions rejecting EPA rules to limit greenhouse gases or air pollution that blows across state lines. And when the majority upheld regulations, including limits on power plants that pump out carbon pollution or put toxic mercury in the air, Kavanaugh filed long dissents, usually arguing that Congress, not the EPA, is the only body with the power to take such steps.

"EPA's well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate," he wrote last year in a 2-1 ruling that struck down a rule that required makers of air conditioners, refrigerators and aerosols to phase out the use of hydrofluorocarbons, or HFCs. Safe substitutes are now on the market, EPA said.

Kavanaugh's opinion in Mexichem Fluor v. EPA was a victory for a Mexican chemical company that produces the outdated, but cheaper, HFCs. By contrast, the largest American firms in the market, led by Honeywell, joined in support of EPA's rule, noting that they had invested more than $1 billion in the new generation of refrigerants. In late June, two days before Kennedy announced his retirement, lawyers for Honeywell and the Natural Resources Defense Council filed separate appeals in the Supreme Court urging the justices to overturn the 2-1 ruling.

Kavanaugh insisted the case was about the "separation of powers," not environmental rules.

It is a familiar theme of his opinions. He is deeply skeptical of costly government regulations, and especially so when Congress has not spoken clearly.

UCLA law professor Ann Carlson, who teaches environmental law, describes him as a "more polite version of Justice (Antonin) Scalia. He will acknowledge the existence of climate change, say that it's a compelling public policy problem, say that Congress could and should do something, and then eviscerate EPA's attempts to address the problem."

Conservatives applaud Kavanaugh's approach and argue he is enforcing the Constitution's principle that Congress, not agency regulators, make the law.

"I don't see a hostility to environmental regulations in his opinions," said Jonathan Adler, a law professor at Case Western Reserve in Cleveland. "He is skeptical of agencies extending their mandates based on old statutes to deal with new problems. It may be true that it creates greater challenges when Congress is not in the game. But he believes, correctly, the agency's power comes from Congress."

During the Obama era, when Congress stalled on immigration and climate change, the White House turned to executive orders and agency regulations to carry out its agenda. This in turn triggered a backlash on the right, where there are calls to rein in the "administrative state" and overturn the "Chevron doctrine," which says judges should usually defer to agency regulators.

Using the authority granted by the 2007 decision, President Barack Obama pressed forward with rules to limit greenhouse gases from cars, trucks, power plants and factories, among others.

In Massachusetts v. EPA, the five justices in the majority pointed to Congress' broad definition of air pollution. It referred to "any pollution agent" that would "endanger public health and welfare," including "effects on weather ... and climate." They said this surely includes greenhouse gases. The four conservatives read the same words and disagreed, arguing climate change was not envisioned by the law.

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Credit: By David G. Savage - Washington Bureau - [email protected]

Caption: Judge Brett Kavanaugh has been a steady "no" vote on environmental regulations cases.

Alex Wong/Getty