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Environmental groups warn of Kavanaugh’s history defending corporate polluters

Supreme Court nominee's anti-environment record cannot be overstated.

Senate Judiciary Committee Chairman Charles Grassley (R-IA), left, has scheduled confirmation hearings for Supreme Court nominee Brett Kavanaugh for early September. CREDIT: Chip Somodevilla/Getty Images
Senate Judiciary Committee Chairman Charles Grassley (R-IA), left, has scheduled confirmation hearings for Supreme Court nominee Brett Kavanaugh for early September. CREDIT: Chip Somodevilla/Getty Images

Environmental and public health groups are convinced that it’s almost impossible to overstate how bad Brett Kavanaugh would be for the environment if he gets confirmed to the Supreme Court.

Among the many judges who sit on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh has, over the past 12 years, become widely known as the one among them who could be counted on to vote in favor of corporate polluters and against regulations that would benefit the public and the environment. In cases where the appeals court issued split decisions in favor of an Environmental Protection Agency (EPA) regulation or rule protecting public health, Kavanaugh was more often than not the lone dissenter.

Kavanaugh, whom President Donald Trump nominated on July 9 to replace Justice Anthony Kennedy, has served on the D.C. Circuit since May 2006. The appeals court handles the vast majority of lawsuits against federal agency actions and policies.

On several occasions during his time on the D.C. Circuit, Kavanaugh pushed to limit the power of federal agencies that regulate the energy sector and other polluting industries.

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Senate Judiciary Chairman Chuck Grassley (R-IA) announced last week that confirmation hearings for Kavanaugh will begin September 4. However, the National Archives has warned that hundreds of thousands of documents relating to Kavanaugh’s work prior to becoming a judge, when he served in the George W. Bush White House, will not be fully available until late October.

“Rather than being honest and forthright with the American people about Donald Trump’s extreme nominee for the Supreme Court, Senator Grassley and Senate Republicans are trying to rush Brett Kavanaugh through before anyone can see the full truth about his views,” Sierra Club Executive Director Michael Brune said in a statement. “It is disgraceful and undemocratic for Senate Republicans to so blatantly undermine the integrity of the Supreme Court, just to please Donald Trump.”

With a long track record of supporting polluting industries, environmental groups are attempting to drive home the idea that a Supreme Court with Kavanaugh as one of its associate justices would become even worse on environmental and climate issues than it already is.

Last Friday, 25 environmental groups signed a letter to the Senate Judiciary Committee opposing Kavanaugh’s nomination to the Supreme Court. “We strongly oppose Judge Kavanaugh as a nominee and assert that careful scrutiny of his record reveals a predisposition to subordinate the rights of people to the interests of corporate profit making,” the groups said in their August 10 letter.

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The qualities that Kavanaugh would bring to the Supreme Court as a justice “would threaten the health and well-being of children, families, workers, and communities, and undermine efforts to protect the ecosystems, natural resources, and global climate systems upon which we all rely,” the letter said.

In one of his most notorious dissents in a case at the D.C. Circuit, Kavanaugh wrote a dissenting opinion that excoriates the EPA for prohibiting a mountaintop removal mining company from dumping toxic waste into West Virginia’s waterways.

The majority in the case upheld the EPA’s authority to block companies from disposing of mountaintop mining waste in our waterways. The majority wrote that the dumping would “destroy streams and habitat [and] cause significant degradation of on-site and downstream water quality.”

In his dissent, Kavanaugh suggested that the EPA needed to weigh habitat destruction from the dumping of mining waste against the impacts a coal company’s stock prices.

“EPA ignored the costs to humans caused by the revocation of Mingo Logan’s permit, such as the harm to Mingo Logan’s owners and shareholders and to the coal miners who had been or would be employed at the mine,” he wrote. “By ignoring costs, EPA in essence discounted the costs to humans all the way to zero.”

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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,” the League of Conservation Voters (LCV) said in an alert released Wednesday.

When Kavanaugh suggested that the EPA needed to weigh habitat destruction from the dumping of mining waste against the impacts a coal company’s stock prices, he was “reading between the lines of the Clean Water Act, finding a way to prioritize corporate profits over our health and well-being,” the LCV said.

The LCV was among the 25 environmental groups that signed the letter sent to Grassley and Sen. Diane Feinstein (D-CA), the top Democrat on the Senate Judiciary Committee, expressing their strong opposition to Kavanaugh’s confirmation.

The groups emphasized that Kavanaugh’s decisions on the D.C. Circuit reveal a tendency to limit the public’s right to access justice through the courts, while at the same time removing barriers for polluters.

“At a time when too many communities of color bear a disproportionate impact from toxic wastes, loose emission standards, dangerous petrochemical facilities and pipelines placed in their communities, we need a Supreme Court Justice that will combat environmental racism and fight for environmental justice for all, regardless of race, ethnicity, national origin, citizenship status, or income — not someone who will bar the courthouse doors on them,” the environmental groups wrote.

Among the other groups that signed the letter were the Center for Biological Diversity, Climate Hawks Vote, Greenpeace, Sierra Club, Wilderness Society, and Waterkeeper Alliance.

Kavanaugh was also part of a D.C. Circuit panel of judges that overturned the EPA’s Cross-State Air Pollution Rule. He and a fellow D.C. Circuit judge found that the rule required states to make emissions reductions beyond what was legally required and that the EPA failed to give states the opportunity to reduce emissions before imposing federal implementation plans.

The Supreme Court reversed the Kavanaugh’s decision, resurrecting the EPA rule targeting air pollution that drifts across state borders and handing the Obama administration a victory on one of its major environmental efforts.

“Several of Judge Kavanaugh’s decisions would significantly reduce agency power to protect public health, by recrafting statutes to eliminate authority that Congress has given agencies,” the environmental groups wrote in their letter.

In the Cross-State Air Pollution Rule case, Kavanaugh’s “narrow interpretation” of the Clean Air Act “would have severely constrained EPA’s ability to protect the people in downwind states from pollution emanating from upwind sources,” they wrote.