Judge Brett Kavanaugh: Environmental Policymaker

by Joseph Tomain

July 26, 2018

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's energy decisions from his environmental ones is that they take two different approaches to reviewing agency actions. His energy law decisions follow the procedure just outlined. His environmental law cases, however, move away from the traditional script and instead insert the judiciary into agency policymaking.

Kavanaugh's energy law cases are straightforward and direct. Indeed, they are textbook examples of how a federal court should review agency action. In a case involving the expansion of a liquefied natural gas facility, for example, the Federal Energy Regulatory Commission (FERC) first granted a permit to expand the facility. That permit was challenged by a natural gas transmission company arguing that the type of gas that was being transported posed a risk of increased leakage. The Court of Appeals remanded for further study, after which FERC upheld the expansion project, arguing that no additional gas would run through the system. Kavanaugh then upheld the FERC decision because the same amount of natural gas would run through the system after the expansion as would run through the system before it. Regardless of one's opinion of LNG facilities, upholding the FERC decision is correct; it is the agency that possesses the expertise to address such issues.

In another natural gas case, a producer objected to a lease agreement between two transportation companies. The producer argued that it could be disadvantaged by the lease agreement and, although FERC applied the correct test for reviewing the agreement, the producer alleged that it failed to apply one element of that test. Kavanaugh agreed, and citing FERC's failure to follow its own rules, remanded the case for further review. Again, this is a run-of-the-mill administrative law case except for one point. Going beyond the decision, Kavanaugh not only recognized that FERC did not apply its own test, he then discussed two ways that FERC could correct the error. Here, then, is a judge telling litigants, including an administrative agency, how to proceed in the future. Kavanaugh is certainly not the first judge to signal how litigants should behave going forward, but this goes beyond what courts should do.

Most court reviews of agency action can be done fairly perfunctorily because courts generally defer to the agency. Occasionally, however, the court will take a "hard look" at the evidence presented before an agency and will overturn an agency decision when the evidence for the decision is lacking. In Mobil Pipe Line Co. v. FERC, for example, Kavanaugh wrote an opinion that vacated a FERC rate decision. Mobil Oil petitioned FERC to allow it to set rates for gas transportation at a market level rather than have rates set by the commission at a cost level. The issue turned on whether Mobil had power in a particular market. FERC staff recommended that market-based rates be set because Mobil had no market power and saw the case as a slam dunk. The commission, however, rejected that recommendation and denied the petition. The reviewing court agreed with the staff recommendation because the pipeline transported only about 3 percent of the crude oil in that particular market. Because a 3 percent market share was de minimus, Mobil lacked market power and, therefore, was eligible for market-based rates as Kavanaugh held.

Overall, Kavanaugh's energy decisions are admirable. They are clear and keenly analytic. Indeed, his energy opinions follow a traditional approach. They grant due deference to agency decision-making and require agencies to follow their own rules and precedents. Further, they are models of instruction. Kavanaugh explains the facts of the case, identifies the applicable rule or rules of law, decides how the law should be applied to the facts, and then explains the reasons behind the decision. This is a textbook approach to judicial decision-making and administrative review.

Kavanaugh's environmental law opinions are notably different. While others have criticized them, the difference between his environmental opinions and his energy opinions is noteworthy. While his energy decisions are, in one sense, run-of-the-mill, his environmental decisions go beyond the ordinary and incorporate hypertextual statutory interpretation, mini lectures on constitutional law and government, and questionable statements about the role of a judge as policymaker.

One example of his hypertextual statutory interpretation involves, perhaps unsurprisingly, climate change and the Clean Air Act. Ever since the Supreme Court decided in Massachusetts v. EPA that the EPA was required to address climate change and that carbon was a pollutant, conservatives have been trying to chip away at and relitigate the case. In two opinions, one concurrence and one dissent,[1] Judge Kavanaugh spent considerable time examining statutory language and finding interpretations that contravene EPA regulations on pollution prevention and restrict the agency's ability to combat climate change.

Two examples occur in a case involving the disposal of nuclear waste, in which he serves up what amount to mini-lectures on constitutional law and government. Since 1983, the United States has not found a long-term depository for such waste. The issue in the case involved whether or not the Nuclear Regulatory Commission properly followed statutory law. The decision was close enough to be decided either way. On the one hand, the NRC failed to follow a statute requiring it to review a nuclear waste site. On the other hand, to do so would cost about $11 million and lead to a futile result because the site in question, Yucca Mountain in Nevada, was not going to be used as a disposal site in the foreseeable future. Regardless, Kavanaugh ran far afield and used that decision to instruct readers on the scope and extent of the president's Article II pardoning power and the executive branch's prosecutorial discretion. As a concurring judge in that opinion noted, Kavanaugh's discussion was "unnecessary to decide the case." Further, in another iteration of that case, in a concurring opinion, Kavanaugh again discussed the extent of the president's authority over independent regulatory agencies. Again, this discussion was unnecessary to decide the case.

And, as an example of his policy statements, consider the following:

". . . I do not want to diminish EPA's vital public objectives in addressing global warming. The task of dealing with global warming is urgent and important at the national and international level. My concern about EPA's approach does not stem from policy beliefs (courts don't have the authority or expertise to assess policy well anyway) but rather from separation of powers principles."[2]

"Of course, our role is not to make the policy choices or to strike the balance between economic and environmental interests. That job is for Congress and the President when considering and enacting legislation . . . .  Our job as a court is more limited: to ensure that EPA has acted within the authority granted to it by Congress.[3]

Both statements are only superficially correct. Yes, Congress and the president make policy through legislation. Yes, courts should not make policy on their own because they lack the technical expertise. Instead, agencies, such as the EPA, have the responsibility of following legislative directions to address particular problems such as air pollution. But Kavanaugh doth protest too much. Ruling whether or not an agency acted within its jurisdictional scope has a direct impact on policy. If, for example, you agree that the EPA properly passed regulations to address climate change, then you defer to that agency. If, however, you believe that the EPA exceeded its jurisdiction, then you can vacate its regulations.

The degree of deference to an agency is itself a matter of policymaking. Regardless of how one couches his decision in terms of proper procedure, statutory interpretation, or application of established administrative law principles, all of those decisions affect policy, and no decision-maker or judge is ignorant of that fact. In his environmental law opinions, Kavanaugh is unafraid to make policy decisions, and he is unafraid of going beyond the case at hand by discussing matters that are unnecessary to determine the case before the court and by addressing matters dealing with his own interpretation of the Constitution.

While it is not unusual for judges to go beyond the opinion and give vent to legal issues that are extraneous to the cases before them, sometimes for the purpose of giving guidance to future litigants, it is an unwise practice. The core of the common law system, even a court system that must interpret and apply statutes and regulations, is that matters that come before the court are actual cases and controversies. They are not hypothetical. They affect real litigants in real time. And, beyond the decision at hand, they are not designed to project judicial or political policy going forward. The real test of a judge, then, is to decide the case as simply and directly as possible and to leave extraneous commentary out of the opinion.

Two additional things may help explain the antipathy Kavanaugh shows to EPA and the solicitude he shows to FERC. First, with rare exception, energy law cases are contests between corporate interests. Consequently, most decisions simply favor one business over another. Small-scale or individual consumers are rarely involved in such cases. Therefore, in FERC cases, there is no overriding corporate interest involved; the agency simply decides disputes between two corporate interests.

Second, until relatively recently (think "Drill, Baby, Drill"), energy policy was largely nonpartisan. For over a century, our country had a traditional energy policy that favored large-scale production, distribution and transportation of energy resources by fossil fuel and nuclear power firms. And, until recently, more environmentally friendly resources such as renewable resources and energy efficiency played a miniscule role in that policy. More notably, energy issues and environmental issues were perceived and regulated separately. 

Today, though, there are growing concerns about climate change, which have forced policymakers to treat energy and the environment as a whole. Over the last two decades or more, environmental policy has become a more hotly contested political issue as it threatens the traditional energy paradigm. During the Trump administration, this has resulted in the United States withdrawing from the Paris Climate Agreement, attacks on the Clean Power Plan, elimination of climate change language and information from government websites, and the severe reduction of the role of scientists.

Overall, the matter of most concern about Brett Kavanaugh on the Supreme Court involves more than his particular political preferences; it also involves his approach to judicial decision-making. He is willing to go beyond the record, address issues not squarely presented before the court, and write his own constitutional law. In short, Kavanaugh is the epitome of an activist judge whose political preferences will invariably be written into law.


[1] Coalition for Responsible Regulation v. EPA, 2012 WL 6621785 (not reported in F.3d.).

[2] Center for Biological Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013), available online at https://scholar.google.com/scholar_case?case=2016480077423675251&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

[3] Coalition for Responsible Regulation v. EPA, 2012 WL 6621785 (not reported in F.3d.).

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Joseph P. Tomain is Dean Emeritus and the Wilbert & Helen Ziegler Professor of Law at the University of Cincinnati College of Law.

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