Kavanaugh dishes on Chevron, environmental law

Source: Ellen M. Gilmer, E&E News reporter • Posted: Monday, September 10, 2018

Environmental law is not the main event at Brett Kavanaugh’s Supreme Court confirmation hearing this week. Far from it.

Members of the Senate Judiciary Committee have instead spent long days quarreling about disclosure of Kavanaugh’s full paper trail and grilling the nominee on whether he would shield President Trump from future investigations or prosecution.

Sen. Richard Blumenthal (D-Conn.) told Kavanaugh that “there will always be an asterisk by your name.” Sen. Lindsey Graham (R-S.C.) responded that Democrats are just in denial about the results of the 2016 election: “If you want to pick judges, you’ve got to win.”

Still, senators found time to question Kavanaugh on the heap of judicial opinions he’s issued during the past 12 years while sitting on the U.S. Court of Appeals for the District of Columbia Circuit.

The judge has a robust record on environmental and administrative law issues and is expected to tilt the Supreme Court further to the right if confirmed.

Committee members went back and forth with Kavanaugh for hours yesterday and Wednesday, shifting between hot topics such as cameras in the courtroom to wonky ones, such as the propriety of nationwide injunctions.

Here’s what we learned on some key issues during the week.

Agency deference

Kavanaugh’s views on deference to agencies came up repeatedly during this week’s confirmation hearing. He has broad experience in the administrative law issue from his time on the D.C. Circuit.

Several Republican senators wanted Kavanaugh’s thoughts on Chevron deference, a standard named for a 1984 Supreme Court case that directs judges to defer to an agency’s reasonable interpretation of ambiguous law. Conservatives have long criticized the doctrine for, in their view, giving too much power to the executive branch.

Kavanaugh noted his own frustration with Chevron this week, arguing that agencies sometimes abuse the system by imagining new authority from an old law and then claiming they’re entitled to deference. He said it’s difficult for judges to fairly and consistently assess when statutes are truly ambiguous.

He stopped short of calling for an outright end to Chevron, however, noting that it’s useful for assessing regulations when Congress has given agencies flexible directions for enforcement. But environmentalists are still concerned he’ll work to sink the standard, which Justice Neil Gorsuch has also panned.

“By overturning the Chevron doctrine, Judge Kavanaugh would vastly expand the courts’ power to overturn federal agencies’ efforts to protect the public from polluters and big corporations,” the Sierra Club said this week.

Sen. Amy Klobuchar (D-Minn.) said she was concerned judges would substitute their own judgment for that of experts in environmental and worker safety standards if Chevron were set aside.

Kavanaugh responded last night by pointing out a number of cases deferring to agencies on technical issues, including one in which he upheld emissions limits set under the national ambient air quality standards.

“I understand what you’re saying about people affected by the rules, and in each of the cases I’ve written, I’ve tried to make that clear,” he said. “Ultimately my approach to statutory interpretation is rooted in respect for Congress.”

The Chevron standard, which originated in Clean Air Act litigation, remains critical to environmental law today. Under both Republican and Democratic administrations, EPA and other agencies routinely ask courts to uphold various regulations by deferring to their judgment.

Senators also asked Kavanaugh to discuss an exception to Chevron and related deference standards. Under the “major questions” doctrine, courts have held that Congress must have spoken clearly on an issue for an agency to take an action that has major economic or social impacts.

Kavanaugh explained his approach in an exchange with Sen. Mike Crapo (R-Idaho) yesterday.

“You look at the number of people affected,” he said, “the amount of money involved, the kind of attention it’s received in Congress, the kind of attention it’s received in the public, and you make a judgment based on that whether this is the kind of rule as Justice [Stephen] Breyer first explained that’s really filling a smaller interstices of a statute or is a big social or economic decision.”

The doctrine arose in litigation of the Clean Power Plan two years ago and is often cited by challengers to various environmental regulations (Energywire, Sept. 6).

Clean Air Act

Kavanaugh rattled off a list of Clean Air Act cases to defend his environmental record earlier in the week.

In a friendly exchange with Sen. Orrin Hatch (R-Utah), Kavanaugh highlighted his decisions affirming EPA standards for particulate matter, a regulation for steam generating units and California emissions limits, among others.

He repeated many of the examples during questions from Sen. Mazie Hirono (D-Hawaii), who was more skeptical of his pattern.

In each of the cases, Kavanaugh sided with environmental groups or upheld an environmental protection. Critics note, however, that several of the decisions were narrow or straightforward. In at least one case, the court actually ruled against environmental lawyers on three of their four claims.

The upshot is that environmentalists remain highly skeptical of Kavanaugh’s record. They sent out a cascade of press statements denouncing the judge’s case history this week, noting that he has ruled against them on several key issues and has often questioned EPA’s authority to issue various regulations (E&E Daily, Sept. 6).

Many environmental lawyers already view the Supreme Court as an unfriendly venue and that Kavanaugh’s appointment to the bench would take it further to the right.

Endangered species

Kavanaugh turned to two Endangered Species Act cases to tout his views on property rights.

Both cases dealt with critical habitat designations for protected species: the San Diego fairy shrimp in California and northern spotted owl. The Fish and Wildlife Service proposed to designate broad swaths of land as critical habitat for both species.

In the shrimp case, he rolled back the FWS designation; in the owl case, he affirmed that a council of lumber companies had standing to challenge the agency’s decision. Center for Biological Diversity attorney Bill Snape called the shrimp decision an example of Kavanaugh ignoring agency expertise to reach a desired outcome.

“Bottom line: he thinks he knows better than agency experts,” he said in an email. “His alleged devotion to statutory text is only when he agrees with the statute.”

The Supreme Court will hear a critical habitat case on its first day back in session on Oct. 1. Snape said Kavanaugh’s portfolio of wildlife cases suggests “one would be a fool to think that Kavanaugh wouldn’t seek to weaken ESA critical habitat on October 1.”

Kavanaugh pointed to his critical habitat cases as examples of his respect for property owners.

“I was just applying the statute as I saw it, but I was trying to do it in a way that understood the concerns of landowners,” he said Wednesday.

In a separate exchange with Crapo, the Idaho Republican, Kavanaugh committed to working to understand issues specific to public lands in the West.

“It’s not my job, of course, as a judge to make the policy decisions for those land or environmental regulations,” Kavanaugh said, “but it is my job to police the boundaries of what you have set forth in the statutes and to make sure that the executive is not unilaterally rewriting the law or going beyond what’s been authorized by Congress.”

‘A fighting chance’

Meanwhile, Democrats on the Senate Environment and Public Works Committee braved 93 degree temperatures outside the Capitol to denounce Kavanaugh’s environmental record.

“Among his nearly 300 opinions, there may be no area of law where he poses, I think, a greater threat than his views on the environment,” said EPW Committee ranking member Tom Carper (D-Del.).

While acknowledging that defeating the nomination may be an uphill fight, Carper noted that the environmental positions advocated by Trump’s first pick to lead EPA’s chemical office, Michael Dourson, and Kathleen Hartnett White, who was tapped last year to run the White House Council on Environmental Quality, eventually forced both nominees to withdraw after it became clear that there wasn’t sufficient support among Senate Republicans to confirm either.

“Michael Dourson and Kathleen Hartnett White were rejected because they embraced a handful of environmental positions that were deal-breakers for Republican senators,” Carper said.

“Sadly, Judge Kavanaugh’s environmental record is a compilation of the very worst of those same extreme positions,” he continued. “I believe that when the American people and the senators with whom we serve fully understand what’s at stake, then we have a fighting chance to stop this nomination.”

Sen. Susan Collins (R-Maine), considered a potential swing vote on Kavanaugh, told reporters yesterday that she would spend the weekend reviewing the confirmation hearing before deciding whether to support him.

Reporters Geof Koss and George Cahlink contributed.