The Left Fears Kavanaugh Will Derail Its Green Agenda

Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committe
Drew Angerer/Getty

Environmental activists are very concerned that Justice Kavanaugh’s appointment to the Supreme Court is going to seriously jeopardize their green agenda.

Inside Climate News reports:

In his dozen years on the federal appeals court that hears the most disputes over government regulatory power, Judge Brett Kavanaugh compiled an extensive record of skepticism toward the government’s powers to act on climate change.

In particular, while Kavanaugh has repeatedly voiced the belief that global warming is a serious problem, he challenged the argument that Congress has given the Environmental Protection Agency authority to do something about it.

That means the 53-year-old jurist, who was confirmed on a 50-48 vote by the U.S. Senate on Oct. 6 and sworn in to replace Justice Anthony Kennedy on the U.S. Supreme Court, could harden the high court for the next generation as a blockade to climate action that isn’t explicitly mandated by Congress.

With a track record like this against the Green Blob, Kavanaugh will have made himself a powerful enemy.

The global warming industry is estimated to be worth upwards of an annual $1.5 trillion. Earlier this week, the IPCC urged that a minimum $2.4 trillion be spent each year on the problem. It is more than possible that the shrill, aggressive and well-funded opposition to Kavanaugh’s appointment stemmed in part from the many powerful vested interests which profit from this ‘Climate Industrial Complex’.

Kavanaugh was instrumental in striking down some of the more extreme climate regulation that Obama tried to push through in the dog days of his second term.

Kavanaugh articulated his narrow reading of the law during oral arguments in September 2016 on the Clean Power Plan. Kavanaugh said the Clean Air Act was “a thin statute” to support the rule, likening the program for reining in carbon emissions from electric power plants to President George W. Bush’s post-9/11 move to detain a suspected enemy combatant without due process—an effort that the Supreme Court ruled unconstitutional.

“War is not a blank check,” Kavanaugh said. “Global warming is not a blank check, either, for the president.”

Kavanaugh also wrote the majority opinion last year striking down another important Obama climate rule—EPA’s regulation of HFCs, potent greenhouse gases used in cooling—as outside the agency’s authority under the Clean Air Act.

“EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate,” Kavanaugh wrote. “… Congress’s failure to enact general climate change legislation does not authorize EPA to act. Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change.”

He is also very much in tune with his president’s view that business and the economy should take precedence over green virtue-signalling.

Kavanaugh also has expressed concern over whether the EPA is sufficiently weighing the cost to business in decisions to benefit the environment, as in a dissenting opinion against the agency’s withdrawal of a Clean Water Act permit for a coal operation.

Similarly, in a 2014 dissent about EPA’s regulations governing mercury emissions from coal plants, Kavanaugh said the agency should have considered the costs when considering at the outset whether it was even appropriate to control the pollutant, a powerful neurotoxin that can cause developmental disorders and other ailments.

And he has written, much as has Trump’s first Supreme Court nominee, Justice Neil Gorsuch, that courts should give less deference to federal agencies where the law is ambiguous—a principle that has governed federal administrative law for 30 years.

“The takeaway message,” said Ann Carlson, director of UCLA School of Law’s Emmett Institute on Climate Change, writing on the institute’s blog, “is that he will construe EPA authority very narrowly and virtually always, but not every single time, in favor of regulated parties and against environmental interests.”

We knew that Kavanaugh’s appointment to the Supreme Court was an important MAGA victory. That victory just got biglier still.


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