Supreme Court Nominee Kavanaugh Could Reinterpret Environmental Law

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By Fatima Hussein

Judge Brett Kavanaugh is President Donald Trump’s nominee for the U.S. Supreme Court to replace retiring Justice Anthony Kennedy.

During his time on the U.S. Court of Appeals for the District of Columbia Circuit, the former clerk for Kennedy and staff secretary for President George W. Bush earned a reputation for thwarting the Obama administration on climate change. Trump announced his intent to nominate Kavanaugh July 9 at the White House.

Kavanaugh wrote the opinion in a 2017 case ruling that the Environmental Protection Agency has no authority to require companies to replace refrigerant chemicals that are also greenhouse gases with more sustainable alternatives.

He also wrote the opinion that struck down portions of the agency’s Cross-State Air Pollution Rule in EME Homer City Generation, LP v. EPA.

Environmental groups were quick to criticize the pick: The League of Conservation Voters, in response to media reports in advance of Trump’s official announcement, tweeted the organization will “fight this every step of the way.”

Even his dissents in clean air cases have impact. The Supreme Court has relied on them multiple times in ruling against the EPA.

In a partial dissent, Kavanaugh said the agency should have considered the cost to the power industry before regulating toxic air pollution in the 2014 case White Stallion Energy Ctr. LLC v. EPA. The Supreme Court cited that dissent in Michigan v. EPA, when it reversed the D.C. Circuit’s decision upholding the standards.

“In administrative law cases, he generally takes a very strict reading” of the Administrative Procedure Act, said Kathryn Kovacs, a law professor at Rutgers University in Camden, N.J. “He could have a big influence in administrative law.”

The first case that the nation’s high court will hear Oct. 1 is Weyerhaeuser Co. v. U.S. Fish and Wildlife Service out of the U.S. Court of Appeals for the Fifth Circuit.

The case revolves around whether U.S. Fish and Wildlife Service had the authority to designate 1,544 acres of private land in Louisiana as critical habitat for the endangered dusky gopher frog in 2010, even though the frog doesn’t exist there and the acres don’t have all the characteristics the frog needs for survival.

Parties in the case disagree over whether the Endangered Species Act allows such a designation, which could frustrate attempts to sell and develop the land.

If the Senate acts fast enough to fill a vacancy on the court, the environmental case will be the first the presumed new justice will consider.

—With assistance from Alan Kovski

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