The Climate Under Kavanaugh

How Judge Kavanaugh and Justice Kennedy differ on the Clean Power Plan.

Last week, the country watched with rapt attention to the confirmation hearings of Judge Brett Kavanaugh. It appears that he will soon be confirmed to the highest court in the country. As an appellate judge for 12 years, Kavanaugh has voted on a number of high-profile cases involving climate policy and the Environmental Protection Agency. And, from what we see of his judicial history, Kavanaugh would decidedly put environmental and climate change policies on the chopping block.

Judge Kavanaugh is nominated to fill the seat vacated by Justice Anthony Kennedy, who cast the deciding vote in the landmark case Massachusetts vs. Environmental Protection Agency. This case gave the EPA the authority under the Clean Air Act to regulate greenhouse gases and ultimately led to the creation of the Clean Power Plan, a policy framework from President Obama that aimed to reduce greenhouse gas emissions from the energy sector by 30% by 2030. The Clean Power Plan is now being dismantled in favor of a more pro-industry Affordable Clean Energy Rule (ACE), put forward by the Trump Administration.

Judge Kavanaugh sees the ruling on the Clean Power Plan differently than Justice Kennedy. In the absence of Congressional direction, Kavanaugh believes that federal regulatory efforts by government agencies should be met with deep skepticism. While he believes in man-made climate change, he does not think it is the court’s job to step in. In a 2016 case West Virginia v. EPA, in which states challenged the EPA’s ability to regulate greenhouse gas emissions from fossil fuel power plants, Kavanaugh said, “earth is warming, and humans are contributing, and I understand the international collective action problem here… but under our system of separation of powers… Congress is supposed to make the decision.”

Unfortunately, the chance of getting legislation from Congress to combat climate change is slim to none. The impasse in Congress is why the Obama Administration decided to use executive action and the EPA’s regulatory authority to address the issue. It is clear that the U.S. is falling behind on the fight against climate change, but if we wait for bi-partisan Congressional action, we will undoubtedly be too late.

In subsequent cases dealing with greenhouse regulations and Obama-era protections to climate, Kavanaugh has reinforced his opinion saying “as a Court, it is not our job to make policy choices.” In the case, E.M.E. Homer City Generation vs. Environmental Protection Agency, he wrote the majority opinion striking down a federal air pollution program to regulate pollution that crossed state boundaries. This “good neighbor” rule was ultimately upheld by the Supreme Court in a 6-2 decision.

Time and time again, Judge Kavanaugh has sided with industry in fights between polluting companies and advocates for clean air and drinking water. The National Resource Defense Council (NRDC) has called Judge Kavanaugh “antagonistic to common-sense safeguards against big polluters” and almost all environmental advocacy organizations are opposing his nomination.

Arguably, environmental laws and climate change policies are not the only important issues under scrutiny regarding Brett Kavanaugh’s appointment to the Supreme Court. Progressives are also concerned about abortion rights, immigration, and voting rights, to name just a few. But changing our environmental agenda is one of the ways Judge Kavanaugh may make a lasting and permanent impact on the health and wellbeing of our country. And likely not for the better. 

Mollie Simon

Senior Communications Specialist
Mollie Simon is the senior communications specialist at the Kleinman Center. She manages the center’s social media accounts, drafts newsletters and announcements, writes and publishes content for our website, and regularly posts to our blog.