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Kavanaugh’s views on EPA’s climate authority are dangerous and wrong

Posted on 10 September 2018 by dana1981

Donald Trump’s latest Supreme Court nominee Brett Kavanaugh accepts that humans are causing global warming and we need to take action to stop it.  The problem is that he doesn’t trust the experts at EPA to do so and wants to erode their authority to regulate carbon pollution.

Chevron is the key

When discussing Chevron and climate change, we usually focus on the company’s legal liability.  However, in Kavanaugh’s context, ‘Chevron deference’ is even more important.  The term refers to the fact that courts will generally defer to government agency interpretations of laws as long as Congress hasn’t spoken directly to the issue at hand. 

David Doniger, director of the climate and clean air program at the Natural Resources Defense Council noted that Kavanaugh doesn’t believe Chevron deference applies on issues of major importance.  In a recent net neutrality case, Kavanaugh argued, “While the Chevron doctrine allows an agency to rely on statutory ambiguity to issue ordinary rules, the major rules doctrine prevents an agency from relying on statutory ambiguity to issue major rules.”

That’s Kavanaugh’s position on climate change.  In oral arguments before his DC Circuit Court of Appeals in a 2016 Clean Power Plan case, Kavanaugh said:

This is huge case … it has huge economic and political significance … it’s fundamentally transforming an industry by telling existing units you in essence have to pay a penalty, a huge financial penalty in order to continue to exist, in order to shift from coal plants to solar and wind plants, at the same time the coal mining industry is in essence greatly harmed, as well.

But while regulating carbon pollution would have a major impact on the fossil fuel industry, the same is true of most pollutant regulations.  It’s nevertheless EPA’s job to regulate pollutants, and the agency has been doing exactly that since its inception. 

Is Kavanaugh right?  You be the judge

In the 2016 oral arguments, Kavanaugh said that the Clean Air Act is “a thin statute, it wasn’t designed with [greenhouse gases and climate change] specifically in mind.”  But EPA was created to address various types of pollution, and the Clean Air Act gave it that legal authority.  As the Act’s text notes:

the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare

The Clean Air act also defined the term “air pollutant” very broadly to allow EPA the flexibility to regulate any new sources of pollution that the agency might identify in the future:

The term “air pollutant” means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air.

And it gave the EPA Administrator the authority to regulate any pollutants that threaten public health and welfare:

For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant … emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare

The Clean Air Act even envisioned EPA’s regulatory authority extending to impacts on the climate:

All language referring to effects on welfare includes, but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate…

In the landmark 2007 case Massachusetts v. EPA, the Supreme Court affirmed that greenhouse gases qualify as air pollutants, and EPA therefore has authority to regulate them if the agency determines that they may endanger public health or welfare.  In its 2009 Endangerment Finding, that was indeed EPA’s conclusion:

greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare .... The major assessments by the U.S. Global Climate Research Program (USGCRP), the Intergovernmental Panel on Climate Change (IPCC), and the National Research Council (NRC) serve as the primary scientific basis supporting the Administrator’s endangerment finding.

In a key 2014 case Utility Air Regulatory Group v. EPA, the Supreme Court ruled 7 to 2 that EPA can continue to treat greenhouse gases as pollutants subject to regulation under the Clean Air Act and can apply those regulations to power plants.  Justices Scalia, Roberts, and Kennedy joined the majority decision.  The good news is that Scalia’s position in this case was modeled after a prior Kavanaugh opinion.

But generally speaking, Kavanaugh doesn’t trust the EPA experts to regulate carbon pollution. 

Kavanaugh thinks Congress should act.  He’s right about that

In the 2016 oral arguments before his court, Kavanaugh laid out his case for why Congress, not the EPA should tackle climate change:

Click here to read the rest

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Comments 1 to 3:

  1. Kavanaugh: "under our system of separation of powers... Congress is supposed to make the decision. You might say... this Congress is ... not going to do anything, but that’s not how we get to make decisions"  What a weaselley cop-out.  Congress made a decision, called the 'Clean Air Act'.  And even if it doesn't apply, the current President would just declare 'National Security' if he wasn't already bought by the fossil-fueled Putin mafia.  This is a national security emergency.  No less than the Defense Department has said so.  But I guess its not quite as 'urgent' as keeping people from flying to the U.S. from the Middle East, and separating children from their mothers at the Southern border.

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  2. There's no question at all that the Trump administration has specifically targeted the EPA to dismantle its ability to regulate polluters.

    The now disgraced Scott Pruitt sued the EPA multiple times before being appointed by Trump to head it. And as head of the EPA worked to dismanlte the agency from the inside.

    All of the ways Scott Pruitt changed energy policy

    "Pruitt backed Trump’s decision to withdraw from the Paris climate accord, and rolled back or targeted a number of other important energy and environmental regulations. He also pushed for a smaller EPA budget — a victory for conservatives who argued throughout Barack Obama’s presidency that the agency was bloated and needed to be significantly downsized.

    During his tenure at the EPA, critics argued Pruitt’s deregulatory actions were an assault on meaningful Obama-era reforms. Supporters claimed Pruitt’s approach helped spur economic growth, especially in the domestic oil and gas industries." 

    It should come as no surprise that Trump's nominee to the SCUS is soft on meaningful powers for the EPA to regulate private sector polluters who have been protected at the highest level for decades.

    It's clear now to anyone who accepts the evidence just how dangerous and destructive fossil fuel driven climate change is now and how it will become increasingly so in the coming years. It's clear that there needs to be significant regulatory powers given to government agencies to control and then phase out all fossil fuel use no matter the impacts to a few corporations no matter their size and economic and political clout.

    Law must flow from genuine social license based on the best information, not fabricated evidence from special interests that are now almost totally cut off from the reality we all now face.

    A reality that becomes increasingly catastrophic as time passes.

    The SCUS decided over a decade ago that carbon dioxide in the excessive amounts human society now emits on a constant basis is in fact a major pollutant. THe EPA should have enacted standards long ago to control emissions from tail pipe and smoke stacks aimed at eventually ending the use of all fossil fuels.

    Any legal decisions need to flow from that or they will in fact be not be real justice.

    But then again, the current White House adimistration and the GOP dominated US Congress seem to have very little to do with real justice and responsible policy.

    The draconian measures to confirm Kavanaugh are evidence of this with massive amounts of information being withheld from those outside the immediate confirmation process and a rush to confirm Kavanaugh before the November election.

    This has nothing to do with appointing a responsible legal expert to a lifelong position which will have a huge impact on how laws are interpreted in the US. If Kavanaugh is confirm as a SCUS Justice then this will be one more instance of control being taken out the hands of the public in the interests of a sector that is already heading us all down one of the most destructive courses possible.

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  3. Recommended supplemental reading:

    What Brett Kavanaugh on Supreme Court Could Mean for Climate Regulations by Marianne Lavelle, InsideClimate News, July 11, 2018

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