New Trump Supreme Court pick gives environmental groups a lot to fear as consensus strategy emerges

Sierra Club views Brett Kavanaugh as a "great threat" to public health and environmental laws.

President Donald Trump on July 9, 2018 nominated Brett  Kavanaugh to replace Supreme Court Justice Anthony Kennedy. CREDIT: Jabin Botsford/The Washington Post via Getty Images
President Donald Trump on July 9, 2018 nominated Brett Kavanaugh to replace Supreme Court Justice Anthony Kennedy. CREDIT: Jabin Botsford/The Washington Post via Getty Images

President Donald Trump picked Brett Kavanaugh, one of the federal appeals court system’s biggest opponents of regulatory action to protect the environment, to replace the Supreme Court seat held by Justice Anthony Kennedy, who will retire at the end of the month.

Kavanaugh, who sits on the U.S. Court of Appeals for the District of Columbia Circuit — informally known as the D.C. Circuit — has made a name for himself as one of the most right-wing members of that panel and for consistently siding with industry in their efforts to stymie the Environmental Protection Agency (EPA).

Based on Kavanaugh’s long record of anti-environment rulings, some environmental groups immediately came out in opposition to his nomination. Other groups are taking a wait-and-see approach. The Environmental Defense Fund, for example, said it will be examining Kavanaugh’s record as his nomination moves through the confirmation process.

In an interview on Monday, Kavanaugh told CBS News that his mother, who was a state prosecutor in Maryland, had a trademark line: “Use your common sense, what rings true, what rings false.” But Kavanaugh has not heeded his mother’s advice since becoming an federal appeals court judge, according to environmental groups. The Sierra Club, which has indicated that it will oppose his nomination, views his record on the D.C. Circuit as extremely hostile to “commonsense environmental safeguards.”


“Judge Kavanaugh presents a great threat to the faithful application of our nation’s bedrock public health and environmental laws should he become a Justice on the Supreme Court,” Sierra Club Executive Director Michael Brune said in a statement Monday evening.

Since his confirmation to the D.C. Circuit in 2006, Kavanaugh has authored numerous opinions in which the court ruled against efforts to control pollution. He also has written dissents in cases where he believed the EPA did not have statutory authority to limit pollution.

Altogether, Kavanaugh had written opinions in 286 cases as of the end of 2017. Because the D.C. Circuit’s caseload is weighted toward the review of regulatory agency decisions, Kavanaugh has written most often in administrative law cases — a total of 122 opinions, according to Adam Feldman of Empirical SCOTUS.

“In key cases, Judge Kavanaugh has favored unduly limiting federal regulatory powers that are central to keeping Americans safe, and has argued for restricting the rights of people to access our court system,” Earthjustice President Trip Van Noppen said Monday in a statement in response to Kavanaugh’s nomination.


In a key decision, Kavanaugh authored the opinion that blocked an EPA rule — dubbed the “good neighbor rule” — that would limit dangerous interstate air pollution from power plants. In another case, he barred people who regularly drive on highways from suing to secure stronger car and truck safety standards to reduce the risk of severe accidents, embracing a standard that could in effect dramatically limit many public health and safety claims.

That decision was appealed to the Supreme Court, which reversed the ruling in 2014. Kennedy voted with the 6-2 majority.

Earthjustice, a nonprofit environmental law organization, said it opposes Kavanaugh’s nomination because “his overly restrictive approach to agency authority, and limited view of the public’s right to access the courts, could jeopardize the ability of federal agencies to carry out their vital missions and threaten the American public’s access to justice.”

Kavanaugh was a frequent opponent of President Barack Obama’s EPA and sought to limit or throw out many environmental regulations.


“Kavanaugh has a record of consistently ruling against environmental protections and has opposed efforts to fight climate change. We will fight this every step of the way,” the League of Conservation Voters said Monday in a tweet.

Over the years, Kavanaugh developed a “pretty good track record” of writing dissents that signaled to former Supreme Court Judge Antonin Scalia that the high court should hear a case, Robert Percival, director of the University of Maryland’s Environmental Law Program, told E&E News in 2016.

In a partial dissent, Kavanaugh said the EPA 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 Kavanaugh’s dissent in Michigan v. EPA, when it reversed the D.C. Circuit’s decision upholding the standards.

The Environmental Defense Fund (EDF) has yet to make a public statement regarding its stance on Kavanaugh’s nomination. However, in a Monday night tweet, the group’s long-time president, Fred Krupp, proposed that senators ask Kavanaugh whether he will “honor access to the courts to address pollution,” as well as honoring “the established protections forged in law to address poisons in air, water and food including the clear [and] present danger of climate pollution?”

Additionally, the Natural Resources Defense Council (NRDC) did not offer a statement Monday night as to whether it would oppose Kavanaugh’s nomination. But the NRDC did emphasize that the Senate must ensure that Kavanaugh respects and enforces the nation’s environmental laws.

“Our next Supreme Court justice will cast pivotal votes on the kind of world we leave to our children,” NRDC President Rhea Suh said Monday in a statement. “High court rulings will sustain or diminish our government’s capacity to preserve clean air and water, safeguard our public lands, defend wildlife from the threat of extinction and fight the growing dangers of climate change.”