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Dirty Decision of the Day

Unpacking Brett Kavanaugh’s Anti-Environmental Record

Aug 14, 2018 · 18 min read

Over a long career, Trump’s nominee for the Supreme Court, Brett Kavanaugh, has sided with polluters over people on a regular basis. And quite frankly, with a record like this, a Senate confirmation of Kavanaugh will almost certainly put our rights to clean air, clean water, and equitable participation in our democracy at risk.

So, every day, we will dive into a different piece of Kavanaugh’s anti-environment record, highlighting the key points of his dirtiest decisions. Trust us, this won’t be a short list — Kavanaugh has quite the record of ruling for polluters over our clean air and water.

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1. EME Homer City Generation, LP v. Environmental Protection Agency (2012)

Kavanaugh rejected protections against air pollution crossing state lines.

In 2012, Kavanaugh struck down an EPA regulation that protects the air quality of “downwind states” by limiting air pollution that crosses state lines.

Why it matters: Air pollution doesn’t restrict itself to state boundaries, and certain states (especially in the Northeast) are stuck dealing with pollution from Midwestern and Southern states. The “good neighbor” rule established by the EPA holds these states accountable, so that downwind states can keep their air clean.

What ended up happening: The Supreme Court rejected Kavanaugh’s ruling in a 6–2 decision, upholding the protections against soot and smog crossing state lines. If the Supreme Court hadn’t reversed Kavanaugh’s ruling, it would have undone clean air safeguards that cover nearly half of the country, putting thousands of people at greater risk for health problems linked to dirtier air.

Quote of the case: In Judge Judith Rogers’ dissent, she says Kavanaugh’s ruling “rewrites a decades-old statute.

The takeaway: Kavanaugh sided with energy companies and the Chamber of Commerce over the American Lung Association, American Thoracic Society, and Atmospheric Scientists. And he displayed two trends in his decisions: One, that he will time and time again rule for polluters over clean air, and two, that he will attempt to rewrite the law when it doesn’t match his views. That is not what a fair-minded judge should do, and it is why we need to stand up to his anti-environment agenda.

Source: EME Homer City Generation v. EPA (2012).

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2. Mingo Logan Coal Co. v. Environmental Protection Agency (2016)

Kavanaugh supported mining companies dumping pollution into our waterways.

In 2016, Kavanaugh wrote a dissenting opinion that excoriates the EPA for prohibiting a mountaintop removal mining company from dumping their pollution into West Virginia’s waterways.

Why it matters: The EPA has the authority to block companies from disposing of mountaintop mining waste in our waterways. The majority in the case upheld this authority, and the EPA found that the dumping would “destroy streams and habitat [and] cause significant degradation of on-site and downstream water quality.” But Kavanaugh’s dissent indicates that he would not hesitate to allow the permanent destruction of waterways and habitats, just as long as shareholders profit as a result.

What Kavanaugh tried to do: When Kavanaugh suggested that the EPA needed to weigh habitat destruction against the impacts on stock prices, he was reading between the lines of the Clean Water Act, finding a way to prioritize corporate profits over our health and wellbeing. If confirmed, there is little doubt that he would apply this corporate activism to every environmental case that comes before him.

Quote of the case: Kavanaugh criticized the EPA for not considering “the harm to Mingo Logan’s owners and shareholders” (he mentions shareholders four times, by the way).

Source: Mingo Logan Coal Co. v. EPA (2016)

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3. In re Aiken County (2013)

Kavanaugh ordered the government to move forward with storing nuclear waste at Yucca Mountain.

In 2013, Kavanaugh ordered the federal government to move forward with storing nuclear waste at Yucca Mountain in Nevada, over the objections of Congress and the White House.

The Yucca Mountain fight: The Yucca Mountain Nuclear Waste Repository was proposed in the 1980’s as a storage facility for spent nuclear waste, but the project has never been completed because of overwhelming public opposition and subsequent defunding of the project by Congress.

What happened: Disregarding the broad opposition to the Yucca Mountain project, Kavanaugh issued a “writ of mandamus,” an extreme remedy that orders a federal agency to act. This directed the Nuclear Regulatory Commission to move forward with the nuclear waste project.

Paging Dean Heller: Nevadans are widely opposed to storing nuclear waste at Yucca Mountain, but Senator Dean Heller is indicating that he’ll vote for the nominee regardless.

In completely unrelated news: Kavanaugh devoted nearly half of his opinion to an essay on executive authority that was so unrelated to the case that Judge Randolph, who joined the decision, refused to join that section of the opinion and wrote that it was “unnecessary to decide the case.” This kind of writing shows a judge who wants to use this power to to reshape the law, not just ruling on the cases in front of him.

Quote of the case:granting the writ in this case will indeed direct the Nuclear Regulatory Commission to do ‘a useless thing.” Chief Judge Garland’s dissent in the case lambasted Kavanaugh for ordering the NRC to move forward with a project that had been suspended for lack of funds.

Source: In re Aiken County (2013)

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4. Mexichem Specialty Resins, Inc. v. EPA (2015)

Kavanaugh argued for delaying protections against carcinogens and other hazardous pollutants in our air and water.

In 2015, Kavanaugh argued for delaying limits on carcinogens and other hazardous pollutants caused by polyvinyl chloride (PVC) production. The court overruled him and allowed the protections to go into place.

How dangerous was this pollution?: The production of PVC emits toxic pollutants known for causing cancer, including 1, 3–butadiene (linked to leukemia), benzene (linked to leukemia and other blood cell cancers), and vinyl chloride (linked to liver cancer, brain and lung cancers, lymphoma, and leukemia).

Kavanaugh’s stance: Kavanaugh pushed for indefinitely suspending the wastewater pollution limits until the EPA determined the exact harm of the pollution, which would have ultimately given polluters more time to dump their toxic chemicals. Kavanaugh criticized the court for not delaying the rule while the EPA reconsidered the final emissions limits, even though the final changes would be minimal, and the companies were already emitting pollutants at levels over ten times higher than the rule allowed.

The big picture: As usual, Kavanaugh considered the cost to polluters, but did not take into consideration the potential harms of wastewater to public health and the environment. He thought the three month delay already put in place by the EPA wasn’t long enough, and the only cost he considered was the cost to polluters of having to comply with these limits.

Quote of the case:The dissent . . . does not account for the interests of other stakeholders who supported the rule and who themselves stand to suffer harm from EPA inaction.” As the majority in the case is right to point out, Kavanaugh is quick to defend polluters but nowhere to be found when it comes to the public’s concerns about clean air and clean water.

Source: Mexichem Specialty Resins, Inc. v. EPA (2015)

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5. Coalition for Responsible Regulation, Inc. v. EPA (2012)

Kavanaugh opposed the regulation of greenhouse gases from motor vehicles.

In 2012, Kavanaugh dissented in a 6–2 decision, opposing the idea that the EPA has the authority to regulate greenhouse gases emitted from motor vehicles.

What’s in a name?: Kavanaugh’s dissent hinges on a pretzel-like contortion of the Clean Air Act, which provides the authority to regulate “any air pollutant.” Kavanaugh’s reading of “any air pollutant,” is that it must mean “only few types of air pollutant.” Kavanaugh attempted to reject the EPA’s reading of the Clean Air Act and replace it with his own, arguing that the longstanding EPA reading is “absurd.”

Why this matters: Kavanaugh’s dissent seeks to place far greater limits on the EPA and its ability to regulate air pollution, challenging two fundamental Supreme Court precedents. One, the “Chevron Deference,” says that the Court should rely on reasonable agency interpretations of statute. The second, Massachusetts v. EPA, established that the EPA is required to regulate pollution responsible for climate change.

What this means: Massachusetts v. EPA was a 5–4 decision written by Justice Kennedy. Kavanaugh in this case showed he would not hesitate to reverse that case, or any other that lets him place polluters over protection against climate change.

Quote of the case: The majority in the case, judicially scolding Kavanaugh for attempting to rewrite the Clean Air Act from the bench: “Congress did not say “certain ‘air pollutants.’ It said “any air pollutant,” and it meant it.”

Source: Coalition for Responsible Regulation, Inc. v. EPA (2012)

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6. Grocery Manufacturers Association v. EPA (2012)

Kavanaugh sided with fossil fuel companies that were trying to block renewable fuels.

In 2012, Kavanaugh wrote a dissenting opinion, arguing that the EPA lacked the authority to expand the availability of renewable fuels — an opinion that sided with the American Petroleum Institute.

What ended up happening: The majority rejected Kavanaugh’s arguments and dismissed the case for lack of standing, first in a 2–1 decision and then in a 6–1 decision the following year, in which Kavanaugh was also the lone dissenter.

Why it matters: On top on the anti-environment tinge of this dissent, Kavanaugh bent over backwards trying to grant standing to fossil fuel companies. But when it has come to citizen’s attempts to protect their health, he has sought to close the courtroom doors.

The takeaway: Every single time Kavanaugh has written a dissent in an environmental case, it has been to benefit corporations at the expense the the environment.* Kavanaugh would be the ultimate corporate benefactor on the bench, swinging the courtroom doors open wide to them, and only them. That is why we need to stand up to his anti-environmental agenda.

Quote of the case: On Kavanaugh’s dissent, Judge Sentelle of the majority said, “[Kavanaugh] relies on Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (2012), but that decision neither changed the prudential-standing standard nor has any particular applicability to the facts here.”

Source: Grocery Mfrs. Ass’n v. E.P.A. (2012); [On Petitions for Rehearing En Banc] (2013)

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7. Howmet Corp. v. EPA (2010)

Kavanaugh tried to get a company out of paying a fine for shipping hazardous materials without following safety rules.

In 2010, Kavanaugh dissented from an opinion that upheld a fine against a manufacturing company for transporting corrosive, contaminated waste without following safety or labeling procedures. Kavanaugh unsuccessfully tried to argued that the contaminated waste shouldn’t be treated as such, because it was being recycled.

Mr. know-it-all: Kavanaugh tried to argue that the EPA misread its own regulation — not law, but the rules issued by the EPA itself. Not only has he repeatedly inserted his own statutory interpretations for those of the EPA, in this case, he tried to argue that he had a clearer grasp on hazardous waste regulations than the agency that wrote them.

Why it matters: Once again, Kavanaugh is defending polluting companies against any effort to hold them accountable. Kavanaugh wants to make it increasingly difficult for agencies like the EPA to issue regulations and put the burden of interpreting ambiguous statute language entirely in the hands of conservative judges. This mindset will inevitably result installing and rolling back our fundamental protections for public health, clean water, clean air, and the ability to combat climate change.

Quote of the case: The majority opinion rejected Kavanaugh’s stance, saying, “Consistent with Congress’s guidance, the EPA’s regulations recognize that recyclable materials, if not managed properly, may present significant risks to public health and the environment.”

Source: Howmet Corp. v. EPA (2010)

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8. Mexichem Fluor, Inc. v. EPA (2017)

Kavanaugh blocked restrictions on hydrofluorocarbons (HFCs), powerful synthetic greenhouse gases.

In 2017, Kavanaugh wrote the majority opinion, striking down an EPA regulation restricting the use of hydrofluorocarbons (HFCs), synthetic greenhouse gases, on the basis that his understanding of “replace” was better than the agency’s.

What are HFCs: HFCs, originally thought to be a safe substitute for ozone-depleting substances, are greenhouse gases that are thousands of times more powerful than carbon dioxide.

What happened: Over the objections of a dissenting colleague, Kavanaugh argued that the EPA doesn’t have the authority to regulate HFCs, even though the 1990 Amendments to the Clean Air Act authorized the EPA to require that ozone-depleting substances be replaced with safe substitutes.

Why it matters: Kavanaugh again disregarded the clear process within the Supreme Court’s longstanding “Chevron deference,” implementing his own interpretation of the statute rather than relying on the EPA’s reasonable interpretation. Every time he gets a chance, Kavanaugh tries to undermine the EPA and replace their interpretations with his own, which will inevitably result in rolling back environmental protections.

On top of this, the Supreme Court is now considering whether to hear this case. Based on prior precedent, if Kavanaugh is appointed, he should recuse himself from the case, but we have all learned by now that “precedent” isn’t what it used to be.

Quote(s) of the case: The dissent in this case pointed out the ways that Kavanaugh’s opinion was wrong: (1) “The majority’s interpretation of ‘replace’ makes a mockery of the statutory purpose;” (2) “The majority’s definition of ‘replace,’ on the other hand, has no semblance of consistency with this aspect of Congress’s purpose;” (3) “Moreover, the majority’s interpretation also runs counter to the purpose of the petition process;” and (4) “the majority has taken the power that Congress granted individuals to request the addition of more risky substitutes to the unsafe list and rendered it largely impotent.”

Source: Mexichem Fluor, Inc. v. EPA (2017)

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9. Texas v. EPA (2013)

Kavanaugh sided with fossil fuel companies that were trying to block protections to combat climate change.

In 2013, Kavanaugh dissented from an opinion that upheld EPA rules designed to limit greenhouse gas emissions from large polluting plants and factories. Specifically, the case focused on states that spent years refusing to follow federal law and update their permitting process.

What did Kavanaugh want: Kavanaugh argued that the states should get at least three years to refuse to follow the rules, during which time their factories could pollute as much as they like. Keep in mind, this included states with automatically updated permitting processes, which intentionally avoid complying with the pollution rules.

Why it REALLY matters (the future of Massachusetts v. EPA): Like we mentioned in Dirty Decision #5, the future of combating climate change at the federal level rests largely in the hands of the Supreme Court, and Kavanaugh has shown in this case and others that his reading of the law is in direct conflict with the precedent set by Mass v. EPA. If he joins the bench, its days are almost certainly numbered.

Kavanaugh’s judicial philosophy: Kavanaugh’s philosophy of corporate supremacy rewards polluters for violating the law, because he’s repeatedly had their back, striking down any EPA efforts to keep our and air and water clean. And despite Kavanaugh supposed devotion to textualism, he once again ignored the plain text of the law to contort the words to fit his goal — and the other judges called him out on it.

Quote(s) of the case: Judge Roger of the majority said, “[Kavanaugh] has a different interpretation of the regulation . . . . He reaches this conclusion ignoring the plain text of the Act.”

Source:Texas v. EPA (2013)

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10. Sierra Club v. EPA (2008)

Kavanaugh attempted to roll back air pollution protections on behalf of the Bush EPA

In 2008, Kavanaugh wrote a dissenting opinion defending the Bush administration’s EPA, which attempted to block states from enacting their own protections against air pollution.

What happened: The majority dismissed Kavanaugh’s arguments, finding that the EPA had failed to impose adequate monitoring requirements on polluters, and they could not block states from filling in the gaps.

(Kavanaugh + EPA) — regulations = love: Despite his repeated attacks on the EPA, suddenly Kavanaugh had their back when they eliminated protections against air pollution. It should surprise no one that the American Petroleum Institute (Big Oil) stepped up and defended the EPA too.

Why it matters: Fundamentally, this case should have been easy for Kavanaugh: it was the EPA (strike one) extending beyond the authority of its statute (strike two), to try and tell states what to do (strike three). If you told Kavanaugh that this was about the EPA enforcing stricter pollution rules, there is no doubt he would have reversed his opinion and come out with the majority, even with the letter of the law the same.

This is a blatant example that Kavanaugh follows a judicial philosophy; he is about seeking policy results. A pro-corporate, anti-regulatory decision will always be more enticing to him than being consistent with his application of the law.

Quote(s) of the case: As Judge Griffith of the majority said, “[Kavanaugh] argues that EPA has already stamped all pre-existing monitoring requirements as adequate ‘to assure compliance,’ and that permitting authorities may not supplement those requirements. Were that true, this would be a harder case”

Source:Sierra Club v. EPA (2008)

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11. American Bird Conservancy, Inc. v. FCC (2008)

Kavanaugh tried to block protections for migratory birds.

In 2008, Kavanaugh wrote a dissenting opinion, arguing that the court should dismiss a case involving protections for migratory birds, who are frequently killed in collisions with communication towers.

In this case, Kavanaugh’s dissent opposed a more complete FCC review of the possible harm that Gulf Coast cell towers pose to migratory birds based on, according to his fellow judges, inappropriate cases and a “mistaken assumption” about the FCC’s ongoing review.

What happened: The American Bird Conservancy and Forest Conservation Council sought protections that would help prevent migratory birds from colliding with communication towers throughout the Gulf Coast. The majority agreed and ordered the FCC to comply with the National Environmental Policy Act and Endangered Species Act.

Why it matters: Kavanaugh attempted to use a seemingly benign argument, that the case was “unripe” because the FCC was involved in a more narrow review of the same issue, and therefore the case should be dismissed. However, the result of Kavanaugh’s efforts to dismiss the case would have delayed justice, likely for years, and as the majority pointed out, it was based on mistaken assumptions and inappropriate cases.

More importantly, it follows the same pattern he has used in Mexichem Specialty Resins, Inc. v. EPA where he argued for indefinitely suspending pollution rules, again delaying justice. Kavanaugh will use every tool at his disposal to restrict and delay the application of environmental protection rules.

Quote of the case: On Kavanaugh’s dissent, the majority opinion said, “The cases on which [Kavanaugh] relies are inappropriate.”

Source: American Bird Conservancy, Inc. v. F.C.C. (2008)

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12. White Stallion Energy Center v. EPA (2014)

Kavanaugh voted against efforts to keep toxic pollution like mercury out of our air.

In 2014, Kavanaugh dissented when the court upheld toxic pollution emissions standards for power plants, and this dissent attempted to change the Clean Air Act in a way that Congress never legislated.

What happened: The EPA issued new limits on hazardous air pollution from fossil fuel power plants under the Clean Air Act, which broadly authorizes limits that the EPA determines are “appropriate and necessary.” In this case, the EPA found the that emissions were linked to increased risks of cancer, neurological effects in children, as well as numerous harms to the environment. The majority found that these limits were appropriate and denied the challenge.

Kavanaugh’s love/hate relationship with legislative history: In this case, Kavanaugh based his decision on the assumption that Congress meant to include cost considerations in the phrase “appropriate and necessary,” despite no references in the text of the section. His dissent is simple conjecture, based on references to cost considerations in other parts of the Clean Air Act.

Kavanaugh usually avoids using legislative history in his decisions, and in an earlier case also on the Clean Air Act, he criticized the EPA for doing so, saying “As to the legislative history . . . the Supreme Court has repeatedly reminded us, the text of the statute controls. And the text here is straightforward and clear.” (Grocery Mfrs. Ass’n v. EPA, Dirty Decision #6). But in this case, Kavanaugh found a single floor speech that supported his argument, and he argued that it eliminated all ambiguity in the phrase.

Why it matters: Like many other dirty decisions, this case shows that Kavanaugh is willing to shift and shape his judicial reasoning to match his desired result. But, this case isn’t just about reading the law; Kavanaugh’s dissent is fixated on the cost to industry and questions whether the health benefits are even worth it, intentionally ignoring the EPA’s determination that the protections would have created as much as $80 billion in benefits a year, including preventing as many as 11,000 premature deaths.

The bad news: Justice Scalia and the conservative wing of the Supreme Court ended up adopting Kavanaugh’s stance in a 5–4 decision in Michigan v. EPA. As Justice Kagan put it in her strongly worded dissent: “And the result is a decision that deprives the American public of the pollution control measures that the responsible Agency, acting well within its delegated authority, found would save many, many lives.

Quote of the case: The majority opinion rejected Kavanaugh’s stance, saying, “The legislative history [that Kavanaugh] claims ‘establishes’ the point consists of a Floor statement by a single Congressman that at best is ambiguous.”

Source: White Stallion Energy Center v. EPA (2014); Michigan v. EPA (2015)

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13. Natural Resources Defense Council v. EPA (2014)

Kavanaugh upheld weakened protections against toxic soot pollution.

In 2014, Kavanaugh wrote an opinion that upheld weakened standards for the cementindustry’s release of toxic air pollution, including mercury and hydrochloric acid.

What happened: Over the objections of several environmental organizations, Kavanaugh ruled that the EPA could roll back emission standards from its 2010 rule, despite the Clean Air Act’s prohibition on emission standards that “diminish or replace the requirements of a more stringent emission limitation.” Kavanaugh, in a departure from his typical standard of relying on his own interpretation of a statute, decided the EPA reading was reasonable and upheld the regulatory rollback.

Why it matters: Kavanaugh has argued, both in cases and in various public statements, that courts should seek the “best reading” of a statute, rather than deferring to agency’s reasoning.. And he has used this in previous cases to supplant a reasonable reading by the EPA with his own more restrictive reading. Yet in this case, when the EPA’s reading results in a weakening of environmental protections, he switches gears completely, “even if EPA’s reading is not the better reading, we conclude that it is still at least a reasonable reading.” Compare this to his Harvard law review article from 2016 when he explicitly says “courts should seek the best reading of the statute.”

What does this all mean? It seems to mean that Kavanaugh will follow a precise judicial philosophy…right up to the point that it stops serving his personal politics. Then all bets are off.

The (limited) good news: Never one to give up a chance to attack the EPA, Kavanaugh ruled as part of the case that the EPA exceeded its authority in establishing an affirmative defense that would excuse certain polluters in private civil suits from the penalties associated with violating emission rules. However, he left the door open for polluters to use this defense down the road.

Quote of the case: Kavanaugh on the health effects of his decision, “[Silence].” (he doesn’t consider health or environmental impact at any point in his 4000+ word decision.)

Source: Natural Resources Defense Council v. EPA (2014); Fixing Statutory Interpretation, Harvard Law Review (2016)

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14. Carpenters Industrial Council v. Zinke (2017)

Kavanaugh ruled to allow the lumber industry to challenge critical habitat protections under the Endangered Species Act.

In 2017, Kavanaugh ruled that a lumber association had standing to challenge the Fish and Wildlife Service’s (FWS) designation of critical habitat for the threatened northern spotted owl.

The background: During the Obama administration, FWS designated critical habitat in Washington, Oregon and Washington for the northern spotted owl, a species that became threatened as the result of extensive clear-cut logging. Lumber companies sued, arguing that FWS did not use the “best scientific data available” when it made its determination.

What happened: While the district court found that the lumber companies failed to articulate a connection between the designation and harm to their business, Kavanaugh had a far more expansive view. He ruled that the decrease in timber supply from this area of forest could impact overall timber availability, and he thus granted standing.

Why it matters: One of the most fundamental principles addressed by the courts is legal standing, the ability for an individual to access the courtroom and seek justice. Concerningly, Kavanaugh’s decisions reflect his expansive view of a corporation’s right to establish standing, and an narrow view for ordinary people seeking justice.

By comparison, in Public Citizen v. National Highway Traffic Safety Admin Kavanaugh ruled against the public interest group’s challenge to a vehicle safety standard on behalf of highway drivers. He did so because Public Citizen did not demonstrate “with certainty” that its members would suffer some particularized and currently identifiable harm other than an increased risk from more severe accidents.

Quote of the case: Kavanagh made clear it didn’t matter how much the lumber companies were injured, “the amount is irrelevant. A dollar of economic harm is still an injury-in-fact for standing purposes.”

Source: Carpenters Industrial Council v. Zinke (2017)

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