A new era has dawned on the Supreme Court. President Donald Trump nominated Judge Brett Kavanaugh Monday night to join the ranks of the great Justice Ruth Bader Ginsburg. Kavanaugh still needs to secure Senate confirmation before succeeding Justice Anthony Kennedy, but the environmental community, especially those advocating on behalf of low-income and communities of color, has plenty of reason to be worried.
“His record and philosophy are no mystery at all,” said Ken Kimmel, president of the Union of Concerned Scientists, to Earther. “I would say he would move the court very sharply to the right when compared to Justice Kennedy.”
Kavanaugh interprets laws very narrowly and very strictly. When it comes to the Environmental Protection Agency, he’s often concerned with regulatory overreach. For instance in 2012, in Coalition for Responsible Regulation v. EPA, where the EPA’s ability to regulate greenhouse gas was being challenged, Kavanaugh argued the EPA had “exceeded its statutory authority,” a phrase that pops up frequently in his opinions on environmental matters.
As E&E News reports, Kavanaugh didn’t express much support for Massachusetts v. EPA in that 2012 dissent, either. That was the landmark case that secured the agency’s power to regulate greenhouse gases in 2007 by determining that they are pollutants under the Clean Air Act. The outcome of Massachusetts v. EPA was rooted in scientific evidence, Kimmel explained. He worries that Kavanaugh might sideline such science in his “very strict interpretation of the law.”
Kavanaugh has said he believes in climate change, but he also said, “Global warming isn’t a blank check” for the president to regulate carbon emissions in 2016, per E&E. That was a comment made about the Clean Power Plan, former President Barack Obama’s attempt to regulate carbon emissions from power plants. In his familiar pattern, Kavanaugh was skeptical about whether the EPA had the authority to create such regulations.
The the Clean Power Plan would have done more than just rein in greenhouse gases. While it focused on regulating carbon emissions, it would have reduced other harmful air pollutants, too, like nitrogen oxides and sulfur dioxide. The EPA itself found implementation of the Clean Power Plan would lead to 3,600 fewer premature deaths and prevent 90,000 asthma attacks. Still, Kavanaugh doesn’t seem to prioritize cleaning up air pollution, either.
In 2012, Kavanaugh wrote the dissent for a case on the Cross-State Air Pollution Rule, where the EPA was trying to regulate pollutants like nitrogen oxides and sulfur dioxide to keep them from blowing from one state to another. He denied a court hearing on the rule that year, but the Supreme Court reversed his decision in 2014 (thank RGB!). He also cared more about costs to industry than health impacts from mercury and air toxins, according to a dissent he wrote in 2014 regarding a separate case that looked at industry regulation. “[A]s a matter of common sense, common parlance, and common practice, determining whether it is ‘appropriate’ to regulate requires consideration of costs,” Kavanaugh wrote.
His colleagues didn’t agree, but the Supreme Court ultimately did a year later, ruling the EPA unlawfully took this regulatory action by not analyzing any cost impacts. Great. The thing is, well, money doesn’t have a place in the EPA’s air quality regulations, according to an earlier Supreme Court ruling in 2001.
“He writes as if he knows better than the EPA on what needs to be done on this,” Kimmel told Earther. “This is very far from the mainstream. Those types of decisions give me a lot of concern that he kind of elevates his view of legal niceties above the needs for having a strong agency making science-based rules to protect clean air and clean water.”
All these decisions, opinions, and rulings are what’s come out not a week after Trump’s announcement. More concerns are likely to be raised on the environmental front, but other lawyers are expressing concern about where Kavanaugh stands on civil rights. The Leadership Conference on Civil and Human Rights has already made it clear it believes Kavanaugh to be “a direct threat to our civil and human rights.”
In 1999, Kavanaugh wrote an amicus brief for conservative group the Center for Equal Opportunity, which opposes affirmative action policies and uses touchy immigration rhetoric like assimilation. His brief was about voting laws in Hawaii, but his support of this group says a lot about his politics. This gives pause to Marianne Engelman Lado, who’s leading the Environmental Justice Clinic at the Yale Law School, because civil rights has everything to do with environmental justice.
“What [the Center for Equal Opportunity] is doing is attacking those efforts being made to make our society equal,” Lado told Earther. “Fundamental to environmental justice is this effort to achieve justice, to bring all our communities together and to ensure empowerment and to stop the degradation of communities.”
Kavanaugh also helped stop efforts to investigate allegedly discriminatory practices in New Orleans after Hurricane Katrina in 2010, when the New Orleans Fair Housing Center sued the U.S. Department of Housing and Urban Development to ensure lower-income communities had access to certain grant money to rebuild after the storm.
The courts are playing a bigger role in the era of Trump. Advocates are looking to the legal system to enforce policies that the White House and Congress aren’t. But the courts have let down communities of color even before Trump. With Kavanaugh’s appointment to the bench now looming, things aren’t looking any better.
“The court has for so long been in a position where it’s been a struggle to achieve justice for EJ [environmental justice] communities,” said Lado.
Lado would like to see the Supreme Court diversify. After all, Judges don’t just bring their ideologies to the bench; they bring their life experiences, too. Right now, those experiences are swinging real white and male. There’s only one woman (RBG!) and one black person, Justice Clarence Thomas.
“The makeup of the court makes it all the more difficult to find ways to ensure that the concerns, worldviews, and ways of interpreting even our founding documents of people from the full range of communities across the country will resonate with the court,” Lado said.
Civil rights and the health of our environment are intertwined. The fate of both is at stake with whoever fills this vacant seat.