On July 9th, President Donald Trump nominated Judge Brett M. Kavanaugh to the Supreme Court, replacing Justice Anthony M. Kennedy, who announced his retirement earlier this month. Kavanaugh’s career has shown a conservative bent, including in his rulings on the federal bench, and he has also acted to resist administrative agency (such as the Environmental Protection Agency) expansion. If he is confirmed, many court-watchers worry about the future of environmental protection.
Justice Kennedy was a key proponent of environmental protection in cases posed to the court. One crucial case in which Kennedy was in the majority led to fundamental policies that continue to shape environmental law today. Massachusetts v. Environmental Protection Agency in 2007 established policies not only to require the EPA to treat greenhouse gases as pollutants and properly regulate them under the Clean Air Act, but to allow states the power to sue the federal government for failing to do so. Kennedy was the key swing vote in this case and ruled in favor of environmental protection.
Law experts believe that this decision is concrete and will not be overturned with the appointment of a more conservative judge such as Kavanaugh. However, a firmer conservative presence in the Supreme Court could create the opportunity to tweak this ruling, loosening regulations on harmful greenhouse gas emissions. It is also possible that states and environmental groups will bring fewer cases to the court that have the potential to further strengthen environmental and climate regulations.
Kavanaugh’s nomination is worrying to many environmental advocates, as he has not been known for supporting a pro-environment agenda in the past. He has spoken out and acted against EPA authority on a number of recent cases and has already had a substantial influence on rulings in the court. His repeated opposition to the expansion of EPA authority is expected to continue if appointed to the Court. Though he has surprised observers in his rulings on a handful of cases, his take on environmental regulation has been quite consistent.
We might preview the intentions of a new Court with Kavanaugh this October with Weyerhaeuser Company v. United States Fish and Wildlife Service. The case will review federal authority on private land under the Endangered Species Act, a ruling previously supported by Justice Kennedy
We have already begun to see changes in the stringency of federal regulation on pollution. The EPA has narrowed the scope of policies restricting carbon and other greenhouse gas emissions. The agency also repealed the Obama Administration’s Clean Power Plan outlining fuel standards in power plants and other Obama-era environmental policies. Though New York State has planned to fight for stricter regulations by the EPA, a conservative Supreme Court with Judge Kavanaugh would likely not be as receptive to the challenge as a court with Justice Kennedy.
NYLCV members will continue to fight for strong state regulations in the vacuum of federal leadership.