March Top 5 2023
Mar 29, 2023
There’s no two ways about it — Judge Brett Kavanaugh’s confirmation to the Supreme Court would be a drastic and alarming shift that would benefit polluters over people, threatening the rights of people across the country breathe clean air, drink clean water and participate equitably in our democracy.
Judge Kavanaugh has been nominated to replace retiring Supreme Court Justice Anthony Kennedy. For three decades, Justice Kennedy was in the majority on all but one of the environmental cases that have come before the high court. Put simply, the environment didn’t win without Kennedy. He was the deciding vote in two particularly significant 5-4 decisions — the first determined that the Clean Air Act covers the pollution fueling climate change, and his opinion in a landmark 2006 case paved the way for the EPA’s Clean Water Rule which protects drinking water for 1 in 3 people.
Judge Kavanaugh’s already long record reveals a far different approach to environmental protection than the justice he has been nominated to succeed. Here are just a few of the most troubling examples from his time on the D.C. Circuit:
-In Coalition for Responsible Regulation, Inc. v. EPA (2012), Kavanaugh rejected the EPA’s authority under the Clean Air Act to regulate “any air pollutant,” instead arguing that the EPA should have far greater limits on what it could regulate as air pollution. This is especially concerning because he questioned the EPA’s ability to curb the pollution that causes climate change. He also expressed a theme that pops up frequently in his opinions: that the costs for industry to limit pollution should be given greater weight than the quality of the air we breathe.
-In EME Homer City Generation, LP v. Environmental Protection Agency (2012), Kavanaugh opposed a regulation to limit air pollution that crosses state lines — blocking clean air safeguards covering nearly half of the country and thus putting thousands of people at greater risk for health problems linked to dirtier air.
-Another example of Kavanaugh’s apparent concern for polluters’ bottom line over public health and safety came in White Stallion Energy Center v. EPA (2014). His dissent argued that the EPA failed to adequately consider the costs for industry to implement controls of mercury and other toxic air pollutants. He argued that “determining whether it is ‘appropriate’ to regulate requires consideration of costs,” even though the Clean Air Act does not actually state that requirement. He also questioned the EPA’s use of “co-benefits” — the indirect benefits of reducing mercury pollution, which would include a decrease in other kinds of air pollution from the same source. This issue is working its way back through our legal system and will likely make its way to the Supreme Court.
-Some of Kavanaugh’s more blatant attempts to favor industry over public health came in Clean Air Council v. Pruitt (2017), where he supported the Trump administration’s delay in implementing methane standards — which the rest of his court ultimately deemed was “unreasonable.” Similarly, in Mexichem Fluor, Inc. v. EPA (2017), he sided with the makers of hydrofluorocarbons (HFCs), which contribute to climate change, in their challenge to EPA regulations on their industry. During oral arguments in that case, Kavanaugh lamented that “EPA’s rule seemed to ‘pull the rug out’ from under companies that invested in HFCs.” This again shows his prioritization of potential corporate profits over the very real health and environmental threats posed by HFCs, which was particularly egregious given the existence of safer alternatives.
-Not content to oppose just clean air safeguards, in Mingo Logan Coal Co. v. EPA (2016) Kavanaugh voted to allow mining companies to dispose of their pollution in waterways.
-In In Re: Aiken County, Kavanaugh wrote the opinion directing the Nuclear Regulatory Commission to move forward with the process to store nuclear water at Yucca Mountain in Nevada.
-Last year in a speech at Notre Dame, Kavanaugh attacked what is known as the Chevron doctrine. According to this is long-standing practice, judges give deference to federal agency interpretations of laws like the Clean Air Act and Clean Water Act. The basic premise is that policy and scientific experts at the agencies are the most qualified to make judgements about health and safety. Kavanaugh, however, disagrees, arguing that courts should not grant such deference to experts. This approach could have far-reaching impacts on agencies like the EPA by limiting experts’ ability to do their basic jobs and use new scientific and medical data to improve safeguards.
At LCV, we work to protect the environment by engaging as many people as possible in our democracy, encouraging everyone to exercise their right to vote, and defending this fundamental right. On this front, Kavanaugh could be a disaster. He voted in 2012 to uphold a South Carolina voter ID law that could have disenfranchised tens of thousands of people of color.
President Trump had the opportunity to nominate someone who would be fair-minded and maintain the balance of the Supreme Court. But by choosing Kavanaugh, Trump has put forth an individual who has sided with the wealthy and powerful over the public interest time and again.
We call on the Senate to reject this extreme nominee and ensure the next justice will uphold our bedrock democratic institutions and environmental laws, which protect our clean air, water, wildlife, lands and health. LCV and our more than two million members are taking action to fight this nomination. Over 20,000 of our members have already raised their voices. We’ll be on the Hill and in communities across the country, organizing people to contact their senators and voice their concerns about the danger that Kavanaugh poses to our health and environment.
It is more important than ever to keep an anti-environmental extremist off of the high court. Justice is worth fighting for. Clean air and clean water are worth fighting for. Our earth is worth fighting for.