What Does Kavanaugh's Supreme Court Nomination Mean for Chesapeake Bay Restoration Effort?

by Evan Isaacson

July 25, 2018

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 Columbia Circuit, Judge Judith Roberts, has written more environmental decisions.

There is no shortage of opinions as to what Kavanaugh's appointment would mean for the future of environmental protection and our essential (and rightly popular) environmental laws, such as the Clean Water Act, Clean Air Act, and Endangered Species Act. After reading through some of these articles and opinion pieces, I can't help but wonder what his appointment might mean for the future of the landmark effort to restore the Chesapeake Bay.

To start, one would have to consider the impact Kavanaugh might have had in the most consequential case in the history of the Chesapeake Bay's restoration, American Farm Bureau Federation v. EPA.

AFBF v. EPA implicates a number of the more prominent issues identified by commentators looking at Kavanaugh's potential impact on environmental, public health, and other regulatory safeguards. For example, Kavanaugh is considered to be skeptical of the "Chevron doctrine," a judicially created standard governing how deferential courts should be to the expertise and decisions of regulatory agencies.

This skepticism has gained substantial momentum in recent years, not only because of the appointment of Justice Neil Gorsuch, who shares similar views on Chevron, but also because the Justice that Kavanaugh would be replacing – Anthony Kennedy – left a parting gift for conservatives in one of his final contributions on the Supreme Court, seemingly urging the Court to reconsider how much deference agencies are owed under this doctrine.

Chevron deference ended up being the deciding factor in the AFBF challenge to the Chesapeake Bay cleanup. After several other grounds for the lawsuit fell away following the District Court decision, the question on appeal came down to the application of Chevron and whether the court should have deferred to EPA and its interpretation of what Congress intended when it wrote the watershed restoration provisions in the Clean Water Act, upon which the Chesapeake restoration plan was created.

If the Third Circuit Court of Appeals had agreed with the Farm Bureau and its allies, not only would it have spelled doom for the Chesapeake Bay restoration plan, it could have dismantled thousands of smaller efforts to restore other watersheds around the country, substantially interfering with one of the central features of the Clean Water Act. Instead, the panel of three judges ruled unanimously that EPA's "common sense" interpretation of its own authority was valid.

But what would Kavanaugh have held and what would it have meant if he were sitting either on that Third Circuit panel or the Supreme Court at the time?

Certainly in any case where Chevron deference is involved, those on the side of upholding a regulation would have cause for concern if the suit came before Judge Kavanaugh. He is widely regarded as being extraordinarily concerned with the constitutional separation of powers among the three branches of government and thus skeptical of anything other than the narrowest interpretation of delegations of congressional authority to regulatory agencies. If he was the deciding vote, it is quite possible that the much-celebrated and much-needed Bay restoration plan would have been struck down.

Moreover, if Kavanaugh was an Associate Justice on the Supreme Court when the appeal of AFBF v. EPA came up from the Third Circuit, we may have found a similar result. When a petition comes before the Supreme Court, the "Rule of Four" controls whether or not that petition will be granted. Because the Court is flooded with thousands of appeals each year, the Justices have to carefully consider which petitions for review to grant. If you replace the relatively moderate Anthony Kennedy with staunchly conservative Brett Kavanaugh, you greatly increase the odds that a case involving a particularly attractive target to conservative judges will be taken up.

The Chesapeake Bay cleanup plan may have become just such a target. Not only has Chevron been in the crosshairs lately, but another of Kavanaugh's more distinctive judicial pet peeves was also involved in the attack on the plan.

When the Farm Bureau wrote in its petition that its lawsuit "cries out for this Court's review," it was referring in part to an argument that EPA's interpretation of its authority to devise the cleanup plan under the Clean Water Act was flawed because Congress would never have envisioned a cleanup plan that had, according to the challengers, such wide-reaching political and economic impacts.

This argument, which is sometimes called the "major rules" or "major questions" doctrine, has become one of the defining characteristics of Kavanaugh's judicial philosophy, as well as that of several other conservative judges in recent years. The Farm Bureau lawyers floated this tempting trial balloon in front of the conservative Justices on the Supreme Court in 2015, writing: "When an issue is one "of deep 'economic and political significance' that is central to [the] statutory scheme, it is reasonable to assume that had Congress wished to assign [the] question to an agency, it would have done so expressly."

The Farm Bureau lawyers quoted from a Supreme Court opinion in a case that had previously come through the D.C. Circuit, in which the Justices sided with Kavanaugh's dissent over the D.C. Circuit majority opinion. The Farm Bureau argued in its appeal that EPA's interpretation could not be granted deference because the Bay cleanup plan has economic and political consequences that are too far-reaching, whether in demanding pollution reductions from the agricultural sector or in allegedly embarking on state and federal land use decision-making.

The Farm Bureau would have been delighted to have Kavanaugh deciding whether to take this case and whether to vote to dismantle the Bay cleanup effort, just as climate deniers may be delighted to have Kavanaugh on the Supreme Court to decide whether EPA's authority to regulate greenhouse gases is too "disruptive" to industry to be legal under the Clean Air Act.

Kavanaugh's supporters like to say that he has his own favorite legal doctrines and interpretive canons, just like any judge, and that he should not be criticized for consistently applying such doctrines. But it is not any one doctrine or legal philosophy that is deserving of criticism, but rather a biased, ideological, or inconsistent application of that doctrine.

It seems that a unifying principle underlying several of Kavanaugh's favorite doctrines boils down to reducing private industry costs related to public protections, in line with the ideology of most conservative lawmakers. Similarly, President Trump signed an executive order last year that set a cap on "regulatory costs" regardless of benefits, and his administration is constantly trying to promote policies, such as the proposal by former EPA Administrator Scott Pruitt, that elevate cost considerations while ignoring or downplaying the benefits of health, safety, and environmental standards. When Kavanaugh penned his dissent in a case involving EPA's denial of a permit for a coal company, it took him all of five words to write the words "costs." And in another high-profile dissent involving EPA air pollution regulations, having found no basis in the Clean Air Act to support his view, Kavanaugh grounded his opinion on what he called "common sense."

If Kavanaugh is appointed to the Supreme Court, the American people may be forced to live with his personal view of what constitutes common sense for decades to come. Unfortunately, what may be common sense to those of us who wish to protect public health and the environment seems too often to make no sense whatsoever to those chiefly interested in what a public safeguard means to their company's bottom line.

Tagged as: TMDL Kavanaugh
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Also from Evan Isaacson

Evan Isaacson, J.D., is a CPR Policy Analyst. He joined the organization in 2015 to work on its Chesapeake Bay program, having previously worked as a policy analyst at the Maryland Department of Legislative Services.

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