Michael Livermore is professor of law at University of Virginia School of Law.

As in many other areas, Justice Anthony Kennedy was the swing vote in environmental cases, lining up in the middle of his more reliably conservative and liberal peers. His proposed replacement, Judge Brett Kavanaugh, has exhibited a very clear track record of relative solicitousness to regulated industry and skepticism to environmental interests. These instincts will likely place him to the right of Chief Justice John Roberts in environmental cases, shifting Roberts to the center of the court. As a consequence, we can expect that a Kavanaugh confirmation would usher in a court that is considerably less sympathetic to environmental protections. This new alignment may have particularly profound effects in the coming years in litigation involving greenhouse gas emissions and federal jurisdiction over water pollution.

When the Supreme Court decides environmental cases, its primary role is in defining the scope of agency authority under one of the major environmental statutes (such as the Clean Water Act) or passing on the legality of an agency action. Because of the specificity of many environmental cases — interpreting the language in one provision of a long and complex statute or examining the administrative record that supports a particular agency decision — the doctrines that arise in environmental cases are typically fairly contained. Where they have more general applicability, it is often because they are intertwined with other questions, such as administrative law issues.

Such was the case with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council Inc., which arose in a challenge by an environmental organization to a Reagan-era rule by the Environmental Protection Agency. The environmental law question in that case was the definition of a “source” under Clean Air Act rules concerning air pollution control requirements. Although the outcome had important environmental law consequences, that statutory issue did not represent the kind of repeat question that generally arises many times before the courts. The case is famous, rather, for its rule concerning the deference owned to agencies for their statutory interpretations, a doctrine that applies far outside the context of a single environmental statute.

Because of the sui generis nature of many environmental law cases, and their entanglement with administrative law issues, one might expect that it would be difficult to identify general trends for individual judges. A strong commitment to Chevron deference, for example, might cut in favor of a stringent regulation in one case and an industry-friendly deregulation in another. Nevertheless, in some high-profile environmental cases, the court does split along standard ideological lines, with the liberal justices coming down in favor of pro-environment outcomes and the conservative justices favoring industry. It is in these more ideologically charged cases that Kavanaugh’s skepticism toward environmental protections is likely to have the most impact.

Two little-known dissents in which Kavanaugh parted ways from even his conservative colleagues on the U.S. Court of Appeals for the District of Columbia Circuit help illustrate his general tendencies in environmental cases. In Sierra Club v. EPA, in 2008, Kavanaugh sat on a panel with two fellow Republican appointees: then-Chief Judge David Sentelle, who was appointed by President Ronald Reagan, and Judge Thomas Griffith, who, like Kavanaugh, is a President George W. Bush appointee. That case involved a challenge by the Sierra Club to a Bush-era EPA regulation that relaxed monitoring requirements associated with a permitting program under the Clean Air Act. Writing for the majority, Griffith found that the EPA had overstepped its statutory authority and struck down the rule. In his dissent, Kavanaugh noted that he “agree[d] completely with the majority opinion about bedrock principles of statutory interpretation,” yet arrived at the opposite result — for him, the most natural interpretation of the act was one that favored the agency’s less stringent approach.

Another case in which Kavanaugh disagreed with like-minded colleagues in an environmental case was 2010’s Howmet Corp. v. EPA, which involved an industry challenge to an EPA interpretation of one of its regulations under the Resource Conservation and Recovery Act. The agency had determined in an enforcement action that a particular chemical was “spent material” and therefore subject to regulation after it had been used in an industrial cleaning process. Writing for herself and Sentelle, Judge Janice Brown (also a George W. Bush appointee) found that the regulation in question was ambiguous and deferred to the agency’s interpretation. Kavanaugh disagreed, arguing that “EPA’s argument mangles the language of [its] 1985 regulations.” He would have voided the agency enforcement action that relied on that interpretation.

Both of these cases involve fairly typical questions of statutory and regulatory interpretation, but what is striking is Kavanaugh’s inclination — even more so than his fellow conservatives — to read the language at issue in ways that were adverse to more stringent environmental protection. By contrast, it appears as though in his time on the D.C. Circuit, Kavanaugh has never issued a dissent in a case in which the majority ruled against an environmental interest.

To reach these outcomes, Judge Kavanaugh is quite flexible in how he applies general principles of administrative law. This tendency is especially clear in two opinions concerning challenges to Obama-era Clean Air Act regulations. In White Stallion Energy Center v. EPA, in 2014, the majority upheld a regulation that imposed more stringent controls on mercury pollution from coal-fired power plants. In dissent, Kavanaugh argued that the agency was obligated to consider compliance costs when determining whether it was “appropriate and necessary” to regulate these sources — its failure to do so was, in his eyes, fatal to the regulation. After granting certiorari in the case, the Supreme Court in 2015 vindicated Kavanaugh’s view in Michigan v. EPA. Justice Antonin Scalia, writing for a 5–4 majority, held that the statutory language “appropriate and necessary” required that the agency consider costs at the earliest stage of its rulemaking.

Kavanaugh’s flexibility becomes apparent in something of a companion case from 2012, EME Homer City Generation v. EPA, in which a group of states and industry representatives challenged a rule to reduce air pollution that crosses state borders. That case also involved the consideration of costs when setting a regulation, but with a twist: In this case, it was the EPA and environmentalists that argued that the agency had the discretion to consider compliance costs when setting emissions budgets for states, and industry arguing that the agency could not consider costs. Kavanaugh again sided with industry, holding that the “EPA may rely on cost-effectiveness factors in order to allow some upwind States to do less than their full fair share” to control pollution, but not more. In other words, for Kavanaugh, cost considerations were a one-way ratchet: When costs are high, then they can be used to justify less stringent environmental protection, but cheap and easy controls are not a good reason to go further to clean up the air. EME Homer, like White Stallion, was taken up by the Supreme Court, but this time Kavanaugh’s view did not prevail, with Justice Ginsburg writing for a 6–2 majority (which included Kennedy and Roberts) that the statute gave the agency broad latitude to craft a regulatory program to cut interstate emissions, with compliance costs as a perfectly reasonable factor for the agency to consider. Scalia, however, agreed with Kavanaugh, arguing in dissent that the agency inappropriately relied on costs.

The contrast between White Stallion and EME Homer is clear: In the case in which considering costs would lead to less stringent standards, Kavanaugh believes that costs must be considered; but in the case in which considering costs would lead to more stringent standards, he says that they cannot be considered.

If we assume that Kavanaugh’s appointment would shift the swing vote on environmental cases to Roberts, it is worth considering how much this would affect the shape of environmental law in the coming years.  Despite the Supreme Court’s politically charged nature, many environmental cases do not result in 5–4 decisions, and so changing a single justice would not upset the outcome. And in recent years, when the justices have fallen along strict ideological lines, Kennedy has typically joined the conservative wing. Since taking his position as the court’s median justice, Kennedy has only swung an outcome toward the liberals in two major environmental cases. The first was Rapanos v. United States, in which a separate opinion by Kennedy avoided a majority opinion by Scalia that would have severely limited the scope of federal jurisdiction under the Clean Water Act. The second was Massachusetts v. EPA, in which Kennedy joined the liberal wing in holding that the agency had the authority to regulate greenhouse gases under the Clean Air Act. Both of these are extremely consequential cases and involve issues that are likely to reappear in the near future.

Current controversies over jurisdiction under the Clean Water Act swirl around the Clean Water Rule, which was promulgated under President Barack Obama. Several cases involving that rule, and an effort by the current administration to repeal it, are now winding their way through the courts and are likely to find an audience before the Supreme Court soon. With a new court composition, Scalia’s plurality opinion in Rapanos may be up for a revival, potentially leading to a severe contraction of federal jurisdiction over pollution into smaller water bodies. Litigation over climate change and greenhouse gas regulation currently takes many forms, from constitutional claims and state actions under nuisance law to pending challenges to the not-yet-rescinded Obama-era Clean Power Plan. When these cases ultimately arrive at the court, environmentalists have good reason to be fearful not only that they may lose on the issue of the day, but also that the bedrock holding of Massachusetts v. EPA may gradually be eroded over time. (It is worth noting that a direct reversal of Massachusetts v. EPA is unlikely, given the court’s reliance on that decision in subsequent cases such as American Electric Power Co. Inc. v. Connecticut, which held that there was no federal common law action for climate damages.)

More generally, given congressional gridlock, notice-and-comment rulemaking by environmental agencies has become the primary vehicle for environmental progress over the past several decades. A shift from Kennedy to Roberts as the deciding vote in environmental cases will make this path more difficult, halting and fraught with risk. For regulated industries, this shift will be welcome, improving their chances in litigation and strengthening their bargaining hand with agencies. Environmentalists, on the other hand, have good reason to be concerned about the new obstructions that are likely to spring up on one of the few remaining paths they have for achieving their policy goals.

Posted in Nomination of Brett Kavanaugh to the Supreme Court, Judge Kavanaugh's jurisprudence, Featured

Recommended Citation: Michael Livermore, Judge Kavanaugh and the environment, SCOTUSblog (Jul. 18, 2018, 1:27 PM), http://www.scotusblog.com/2018/07/kavanaugh-and-the-environment/