Supreme Court nominee Brett Kavanaugh has defended his record on environmental issues, telling senators during his Senate confirmation hearing that he hasn’t fully favored polluting industries during his 12 years as an appeals court judge. Kavanaugh insisted at his hearing in early September that he has instead ruled in favor of environmental regulations a number of times.
The saga over Kavanaugh’s nomination appears to be nearing a conclusion. The U.S. Senate voted Friday morning to move Kavanaugh’s nomination forward and the Senate is expected to conduct a final vote on his nomination Saturday afternoon. If his nomination is successful, the Supreme Court will have gained someone who is widely viewed as the most pro-polluter judge on the D.C. Circuit.
Kavanaugh’s misleading statements about his voting record in environmental cases is part of a trend in which the judge has either obfuscated his past legal opinions or outright lied to the Senate Judiciary Committee.
Kavanaugh was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit in 2006; the court hears numerous cases each year involving the Environmental Protection Agency (EPA) and other environmental matters.
And in its recent analysis, environmental law firm Earthjustice found that of 26 EPA-related cases in which Kavanaugh wrote opinions, the judge sided with rolling back protections for clean air and water 89 percent of the time. He also ruled against animals and wildlife 96 percent of the time, according to the Center for Biological Diversity.
Since 2006, whenever a decision emerged from the D.C. Circuit that included a 2-1 vote in favor of an environmental protection during his tenure, the odds were favorable that Kavanaugh — if he were one of the three judges picked to hear the case — was the lone dissenter.
Kavanaugh, whom Trump nominated on July 9, has been part of more than 300 opinions on the D.C. Circuit, with a consistently conservative record.
“During the Trump regime, the courts have been a bulwark against the lawless, autocratic dismantling of decades’ worth of environmental and public health protections,” Mitchell Bernard, chief counsel at the Natural Resources Defense Council (NRDC), wrote in a blog post published Thursday.
To play this essential role, “courts must maintain both the reality and the appearance of objectivity, of not having a political (or any other) ax to grind,” Bernard said. “This is fundamental to their authority and what differentiates the judiciary from its coequal branches of government.”
Questions, however, have been raised about Kavanaugh’s temperament and ability to remain impartial. During his testimony before the Senate Judiciary Committee, where he defended himself against accusations of sexual assault, Kavanaugh blamed a left-wing conspiracy, composed of unnamed individuals and groups “disturbed by Trump’s election or the Starr investigation of the Clintons, are trying to do him in,” Bernard wrote. “He did not support that claim with evidence.”
“And presumably some of the unnamed ‘left-wing’ groups the judge accused,” Bernard said, “are litigants who will appear before him.”
At his September 5 confirmation hearing, Kavanaugh went on the counterattack against groups that have used his anti-environment voting record as evidence against him. “In environmental cases, some cases I’ve ruled against environmentalist interests, and in many cases I’ve ruled for environmentalist interests,” he told senators.
In the month since Kavanaugh made those claims, environmental groups and reporters have been busy fact-checking the judge’s statements against his record on the D.C. Circuit.
“Kavanaugh’s claims about giving environmental issues a fair shake while on the court, on the other hand, can be easily fact-checked against the judicial record. And when they are, they come up short,” Sharon Lerner reported Thursday in The Intercept.
In his 12 years on the federal bench, Kavanaugh ruled against the animals 96 percent of the time https://t.co/Xk7OtYWtfL
— Sharon Lerner (@fastlerner) October 4, 2018
Lerner focused on Kavanaugh’s reference to a case involving the NRDC that the nominee characterized as “a ruling for environmental groups.”
Kavanaugh clearly was trying to create confusion about his voting record. In the 2014 decision, Kavanaugh ruled against — not in favor of — three of the four challenges brought by the NRDC and the Sierra Club on emissions standards for the cement industry. Kavanaugh agreed with the environmental groups on only one procedural point, Lerner reported. And that point wasn’t “especially environmental,” John Walke, clean air director and a senior attorney for the NRDC, who argued the case in front of Kavanaugh, told Lerner.
And one of the primary reasons why President Donald Trump nominated Kavanaugh to the Supreme Court was his long record of ruling against environmental regulations. After Trump nominated him this summer, the White House issued a one-page document that praised Kavanaugh for overruling federal regulators “75 times on cases involving clean air, consumer protections, net neutrality, and other issues.”
With his Senate confirmation vote delayed due to sexual assault allegations made by Christine Blasey Ford, researchers had more time to analyze Kavanaugh’s responses to senators. Since then, it has come out that Kavanaugh lied under oath on numerous occasions during his September 5 confirmation hearing and his September 27 appearance before the Senate Judiciary Committee.
“This is a sad and disgraceful day for America as Senate Republicans continue to prove to be more concerned with advancing a dangerous and unqualified nominee than in fulfilling their obligations to the people and the country,” Sierra Club Executive Director Michael Brune said Friday in a statement.
Kavanaugh should be disqualified from serving on the Supreme Court, according to Brune, for his “extremist views and record” and “his countless lies under oath.”
Kavanaugh’s antipathy to environmental regulations and the clear possibility that he will seek revenge against groups that opposed his nomination, including environmental organizations, does not bode well for public health and environmental protection if he is confirmed by the Senate.
“Instead of having confidence in the EPA’s scientific integrity, Kavanaugh is deferential to Trump’s so-called energy dominance and big business agenda,” Mike Mikulka, president of the American Federation of Government Employees Local 704, the union representing 800 EPA employees in Chicago and across the Midwest, said Friday in a statement emailed to ThinkProgress. “Kavanaugh brings imbalance to the Supreme Court and will give big polluters license to self-regulate and release more pollution.”
Yet, if Kavanaugh does become a Supreme Court justice, interested parties are virtually certain to ask him to recuse, or disqualify himself, from cases involving environmental and other issues. The law requires federal judges at all levels to recuse when they have conflicts of interest, but there is no way to enforce it against Supreme Court justices short of congressional impeachment.
Several environmental cases are likely to be decided in the Supreme Court’s 2018-2019 term, giving Kavanaugh an opportunity right out of the gate to sustain his anti-environment judicial record if confirmed to the court.
One of those cases, Weyerhaeuser Company v. United States Fish and Wildlife Service, would decide under what circumstances a habitat can be designated as critical under the Endangered Species Act, including whether private land can be designated and whether such designations must consider economic impact.
At issue is how far the federal government can go to protect an endangered species’ habitat — even when the species has not been seen there in years — without denying the rights of property owners, such as timber industry giants, and the economic interests of local and state governments. The case brought by Weyerhaeuser would push back on some of the fundamental aspects of the Endangered Species Act that have created huge benefits for species since the act was passed in 1973.
In another case, Virginia Uranium Inc. v. Warren, the Supreme Court will look at whether federal law preempts a 36-year-long uranium ban in Virginia. The case pits the issue of states’ rights against environmental law. While cooperative federalism is a conservative favorite, in this case it is negatively impacting the uranium industry.
With this case, a state’s ability to regulate uranium mining — and mining more broadly — may be in jeopardy. A win for Virginia Uranium Inc. would likely spur private businesses to challenge other state laws that prevent mining activities, creating broad-ranging impacts on environmental health.