Kavanaugh on the Environment

September 1, 2018

Brett Kavanaugh’s record on the environment is clear. Time after time, as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, President Trump’s nominee for the Supreme Court has ruled in favor of allowing corporations to pollute our air and water. If confirmed, there is no question that he will weaken safeguards for the health of families and the environment.

Clean Air

Congress enacted the Clean Air Act in 1970. According to the EPA, “After the Clean Air Act’s first 20 years, in 1990, it prevented more than 200,000 premature deaths, and almost 700,000 cases of chronic bronchitis were avoided. From 1990 to 2010, total emissions of six principal air pollutants decreased by more than 41 percent.”

Kavanaugh has consistently backed the rights of corporations to pollute over the right of the public to breathe clean air and drink clean water. In EME Homer City Generation, LP v. EPA, he rejected an EPA rule requiring that states bear responsibility for their fair share of toxic pollution that reaches states downwind of the source. The EPA estimated that the rule could prevent between 13,000 and 34,000 premature deaths, 19,000 hospital visits, and 1.8 million days of missed work or school per year. The Supreme Court overturned Kavanaugh in a 6-2 decision.

In another key case, White Stallion Energy Center v. EPA, Kavanaugh dissented in part from the majority ruling that it is “appropriate and necessary” under the Clean Air Act for the EPA to limit the amount of mercury and other hazardous pollution corporations can emit from power plants. He argued the EPA first had to evaluate the cost to the power companies, even though Congress itself did not include such a requirement in the Clean Air Act.

Clean Water

In 1972, the Clean Water Act became law. Before the Clean Water Act, rivers, lakes, streams, bays, and coastal waters were not sufficiently protected from toxic pollution. There was no effective way to prevent the dumping of waste into our waters. Toxins contaminated the water that we drank, fished in, and used for recreation.

In Mingo Logan Coal Company, Kavanaugh argued that before vetoing a permit that would have allowed coal companies to dump toxic mining wastes into public waterways, the EPA should have considered the cost to coal companies, even though Congress itself did not include such a requirement in the Clean Water Act.

Climate Change

In Massachusetts v. EPA, the Supreme Court held that the EPA had the authority to limit greenhouse gas pollution; and in 2009, the EPA found that greenhouse gases “endanger both the public health and the public welfare of current and future generations.” Yet, President Trump has called climate change a “hoax” and disgraced ex-EPA Administrator Scott Pruitt said he did not believe carbon dioxide pollution from burning fossil fuels is a major cause of climate change. Conservatives are using the courts to challenge the EPA’s ability to address climate change.

In Coalition for Responsible Regulation, Inc. v. EPA, Kavanaugh argued that the EPA’s authority to regulate “any air pollutant” excluded certain greenhouse gases, and in fact only referred to “six air pollutants.” And, in Mexichem Fluor, Inc. v. EPA, Kavanaugh argued against restricting manufacturers from making certain products that contain greenhouse gases known as “hydrofluorocarbons” (HFCs), which contribute to climate change. In that case, Kavanaugh wrote: “EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate.”  Kavanaugh also sided with Scott Pruitt when the D.C. Circuit found, in Clean Air Council v. Pruitt, that the Trump Administration had unreasonably delayed rules curbing methane and other greenhouse gas emissions.