Judge Brett Kavanaugh: Environmental Policymaker
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
When Judge Brett Kavanaugh was nominated for the open U.S. Supreme Court seat, I was interested in his energy law opinions and began reading them together with some of his environmental law decisions. They seem to be written by two different judges.
Administrative law cases can be procedurally and technically complex. The role of the judiciary in those cases, however, is relatively straightforward. Congress passes legislation and directs an administrative agency to address identified problems. Agencies develop the expertise to gather and analyze data and to make choices and issue regulations. Disappointed parties have appeals available to them within administrative agencies and, if still dissatisfied, a party may ask a federal Court of Appeals for relief by way of overturning an agency determination.
The standards for overturning an agency decision are appropriately rigorous. Generally, a litigant must show that the decision was arbitrary or capricious or that the decision was not based on substantial evidence. The role of the federal court, then, is to ensure that the agency followed relevant statutes and its own rules and procedures. What distinguishes Kavanaugh …
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
President Trump's nomination of Judge Brett Kavanaugh to a lifetime seat on the Supreme Court has enormous environmental and public health implications – true of any high court nomination, but particularly true in this case because he would replace Justice Anthony Kennedy, the high court's long-time swing vote.
As it stands, Kavanaugh has already had an outsized impact on the shape and direction of environmental law in the United States. A review of Kavanaugh's judicial opinions shows that he has been one of the most prolific writers of environmental law decisions over the last decade on what is considered the nation's second-highest court, and the one with jurisdiction over much of the federal regulatory system. Only one other judge on the United States Court of Appeals for the District of …
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
If Judge Brett Kavanaugh's Supreme Court confirmation process goes as quickly and affirmingly as his supporters hope, one of the cases he'll hear on his first day on the bench will invite him to consider an imponderable question: Whether it's possible to put a dollar value on an endangered species.
Weyerhaeuser v. U.S. Fish and Wildlife Service will raise an important and long-controversial aspect of environmental law: the use of cost-benefit analysis in agency decision-making. The Court may well be able to decide this case without diving into the most contentious aspects of the long-running cost-benefit debate. Still, it could provide an opportunity for a glimpse into how a new justice would approach a set of issues that, while seemingly technical, are central to deciding the stringency of …
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
"This is a case about executive power and individual liberty." That is how Judge Brett Kavanaugh started the opinion he wrote for a three-judge panel of the D.C. Circuit Court of Appeals holding that the structure of the Consumer Financial Protection Bureau (CFPB) was unconstitutional. That opinion is one among many that reflects Supreme Court nominee Kavanaugh's belief that administrative agencies are in a constitutionally precarious position that demands strong judicial supervision.
Many believe that, as a result, a Justice Kavanaugh would be a reliable vote in favor of industry and against administrative agencies and the environmental, health, safety, and consumer protections they enforce. Others claim he would be "evenhanded" in cases challenging agency action and simply do his job as a judge by insisting that agencies …
Scott Pruitt's narcissistic reign as EPA Administrator consumed advocates' collective energies, and rightfully so. It was a drama that recently ended – not via Trump tweet, but by old-fashioned resignation. Alas, this victory's potential downside is that the new guy at EPA, Andrew Wheeler, may be more effective at dismantling environmental protections than Pruitt was because Wheeler actually understands how bureaucracy works.
Then, of course, came the orchestrated events surrounding Justice Kennedy's retirement and President Trump's pick to fill the vacancy, thrusting Brett Kavanaugh to center stage. Environmental protection (among other issues) seems imperiled as the Court is poised to take a hard "right" turn if Kavanaugh is confirmed.
But as we continue to keep a vigilant eye on EPA and the future trajectory of the Supreme Court, let's not forget weighty environmental legislation currently making its way through Congress: the 2018 Farm Bill.
Yes, you read that …
This op-ed originally ran in The Hill.
Last month, two Inspectors General issued scathing reports about their departments' behavior. The Justice Department's IG got all the attention, while largely overlooked was a disturbing report from the Interior Department IG, who concluded that the agency had no reasonable rationale for halting a major study of the health risks of mountaintop removal mining. The study was already under way, and nearly half of its $1 million price tag had already been spent, but Secretary Ryan Zinke and his lieutenants pulled the plug, presumably because they didn't want to have to face its likely findings. They told investigators it was "because they did not believe it would produce any new information and felt costs would exceed the benefits."
The Trump administration's insistence on suppressing scientific evidence of health risks inconvenient to extractive industries is at once shocking and unsurprising …
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
Presidents control crucial government agencies with authority over the environment, food and drug safety, and workplace conditions. Through various environmental, health, safety, and other laws, Congress has given these agencies broad authority to issue rules and regulations that affect the lives of every American. But current law provides safeguards against arbitrary decisions – safeguards that Judge Brett Kavanaugh would weaken or eliminate if confirmed to the U.S. Supreme Court.
These safeguards are designed to promote public input and force agencies to disclose their evidence and reasoning to public scrutiny. Agencies must disclose proposed rules, obtain public comment, and then provide explanations of their decisions. As interpreted by the courts, this means an agency has to provide enough information to allow substantive comments, and it has to give a reasoned …
This op-ed originally ran in the Duluth News Tribune.
Any Minnesotan who has ever dipped a canoe paddle, pitched a tent, or laced up a hiking boot while visiting the Boundary Waters Canoe Area Wilderness can tell you why it is the nation's most-visited wilderness area and considered a crown jewel of Minnesota. Unfortunately, Twin Metals, a subsidiary of the Chilean mining giant Antofagasta PLC, has its eye on the area in hopes of operating a sulfide-ore copper-nickel mine, bringing one of the world's most toxic industries to the edge of the Boundary Waters. Despite the devastating impact expected on the local economy and environment, President Donald Trump's Interior Department is bending over backwards to support the push to pollute.
If allowed, Twin Metals is expected to locate its processing plant on the banks of Birch Lake, a popular fishing and recreation lake that flows into the …
At the end of June, in a vote divided along partisan lines, the Federal Energy Regulatory Commission (FERC) handed down a sweeping order that will impact electricity markets in a wide swath of the country – likely at the expense of renewable energy and nuclear power. Unfortunately, like Trump's power plant bailout, the result may be to delay the closing of coal-fired power plants. That's a serious problem. A new study by researchers at Resources for the Future shows that a two-year delay in plant closings would cause 353-815 deaths and release 22 million extra tons of carbon. A two-year delay would cause one death for every four or five coal mining jobs it saved for those two years.
The FERC order applies to PJM, which operates a vast part of the national grid encompassing much of the mid-Atlantic, upper South, and Midwest. My first thought was that …
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
Last night, President Donald Trump set the stage for a contentious debate about American social and economic welfare in the decades to come, nominating a Washington insider with a narrow worldview to the Supreme Court. Brett Kavanaugh's opinions on issues related to reproductive and civil rights are at the forefront of many voters' minds, but there's another danger that deserves just as much attention: What Kavanaugh would do on issues involving protections for consumers, workers, and the environment if confirmed by the Senate.
Trump and the current congressional majority are busy with their attempts at "deconstructing the administrative state." Kavanaugh might tip the balance in that direction on the Supreme Court, as well, particularly given his record of animosity against sensible safeguards during his time on the …
