Kavanaugh’s Confirmation Would Bring “the End of Modern Environmental Law”
Professor Bill Snape of the Center for Biological Diversity says that though Brett Kavanaugh gives lip service to the climate crisis, his record shows he won’t support environmental regulation—in short, Professor Snape says, he’s like Voldemort
DHARNA NOOR: Welcome to The Real News. I’m Dharna Noor in Baltimore.
The looming battle over presumptive Supreme Court nominee Brett Kavanaugh is heating up. No date’s yet been set for the confirmation hearing, but Senator Mitch McConnell says he expects it will take place in early October, before this year’s midterm elections. If Kavanaugh receives a simple majority vote from the U.S. Senate, he’ll be confirmed. In Kavanaugh’s judicial remarks in a 2013 case he wrote, quote: The task of dealing with global warming is urgent and important. But he went on to say: As a court, it’s not our job to make policy choices. What would Kavanaugh’s confirmation mean for environmental and climate regulation?
Well, here to discuss this with me is William J. Snape III. Bill is a dean of Adjunct Faculty Affairs, and an Environmental Law fellow at American University’s Washington College of Law. He’s also senior counsel with the Center for Biological Diversity. Thanks so much for coming on today, Bill.
BILL SNAPE: Thanks for having me.
DHARNA NOOR: So I guess I want to start with talking about how Kavanaugh would differ from his would-be predecessor, the Reagan appointee Anthony Kennedy. Because Kennedy did sometimes support climate regulation, but not always. For instance, in the 2014 decision on Utility Air Regulatory Group v. EPA, he supported the majority opinion, actually, that the EPA could not regulate small pollution sources like apartment buildings or businesses. But you, Professor Snape, Have compared Kavanaugh to Lord Voldemort. Kavanaugh has actually called Kennedy a mentor. He used to work for him as a clerk. So what do you, what would you expect from him, and how would you expect he’d be different from his predecessor?
BILL SNAPE: Well, I can certainly understand why Brett Kavanaugh wants to be associated with Justice Kennedy, because Justice Kennedy actually was a centrist; someone who had an open mind to every case, who rolled against us sometimes, and for us other times. But every case was something that Justice Kennedy looked at with fresh eyes. And that is why he was the swing vote on the Supreme Court, not only for the Clean Air Act, but for the Clean Water Act, for the Endangered Species Act, and many other important environmental and energy matters.
Kavanaugh, on the other hand, really has been a Republican Party hack for his entire career. He has carried the ideological torch of big business for the entire length of his career. And in fact, if you look at his D.C. Circuit record, you are hard pressed to find any decisions where he actually speaks up on behalf of the environment. He doesn’t do it very much, if at all.
DHARNA NOOR: There’s been some disagreement, though, amongst legal environmental scholars about what Kavanaugh’s impact would be on climate policy, because some have indicated that he’s actually protected climate regulations in some cases. For instance, in one very controversial case in 2013, Kavanaugh voted in defense of an EPA decision to, I believe, retroactively veto a mining project that was set to be built in West Virginia. But again, you told BuzzFeed News that he’s, quote, consistently anti-environment on every front, so talk about that.
BILL SNAPE: So, he’s written over 300 decisions as a D.C. Circuit judge. And I could find only two that he authored that were even remotely pro-environment. One was that mining case, which actually was a slam dunk case. The EPA was doing exactly what the statute said EPA could do. And the other was a very minor procedural victory on behalf of NRDC, again based upon the statute that was quite clear. And as I’d like to say about these two times that he’s sort of voted on behalf of the environment, even a broken clock is correct two times a day.
All the other decisions he has written far outweighing those two minor decisions. He has not only voted against the environment, against endangered species, against clean air, he has seemed to take a special glee in it, his rhetoric sometimes really zinging EPA, zinging the Fish and Wildlife Service for even minor infractions. So when you look at his record overall, he really has been the Lord Voldemort of environmental cases. And it’s not just me saying that. The Supreme Court actually overturned him with some rhetoric of its own, saying that Judge Kavanaugh had vastly misread the Clean Air Act on the cross-state border pollution rule called the Homer case from a few years ago. Judge Kavanaugh, again, was overturned by the Supreme Court 6-2. Chief Justice Roberts and Justice Kennedy each voted against the Kavanaugh position. So in my view this is bad news, and he will radically change the tenor and makeup of this court if he is to be confirmed.
DHARNA NOOR: But I guess some would say that, you know, it’s better than having an out-and-out climate denier. Do you think that’s true? Or you think it’s basically the same thing, do you think he’ll just continue this Trump administration policy of deregulating and promoting this climate-denying agenda?
BILL SNAPE: Yeah, I think Judge Cavanagh’s rhetoric is kabuki theater. I think he knows how to say just enough to tease the listener that he might do something good. But when you look at every single one of his Clean Air Act cases, particularly the Obama years, where the Obama administration was trying to deal with climate change under the Clean Air Act, abject hostility from Kavanaugh. Did not support one Obama EPA climate initiative. Not one.
So from my vantage point, even Massachusetts v. EPA is on the chopping block if Brett Kavanaugh is confirmed, because it’s not clear whether Brett Kavanaugh thinks EPA has any authority to deal with climate change, whatever his view of the science is. Because under Kavanaugh’s view he thinks every Congress ought to opine on climate. And since this Congress is against climate, that’s good enough for Kavanaugh. We can just punt and do nothing.
DHARNA NOOR: Could you talk a little bit more about that case for viewers who aren’t familiar with Massachusetts v. EPA?
BILL SNAPE: Massachusetts v. EPA was a 2007 Supreme Court case where Kennedy was the swing vote that challenged the Bush administration, the second Bush administration’s foot dragging on climate change under the Clean Air Act. And the Supreme Court said that all the excuses that the Bush administration created were all bogus, and that EPA needed to go back and actually make a finding that climate change and climate pollutants harm the environment, endangered human health and welfare. And eventually that’s exactly what the Obama administration did, and the Obama administration built a regulatory framework based upon Massachusetts v. EPA.
Brett Kavanaugh’s been hurling rocks and grenades and bombs at that infrastructure literally from day one, and it really isn’t clear to me whether Brett Kavanaugh believes that EPA has any authority to regulate climate change under the Clean Air Act. He’s never really come out and said one way or the other. And there’s a lot of reading of his decisions that would indicate that he’s quite skeptical EPA has any authority. So that, to me, is the grave concern. Not only does he rule against the EPA and all the environmental agencies all the time, his very viewpoint of the foundation of climate law in this country indicates he’s willing to throw the whole thing out, perhaps.
DHARNA NOOR: Yeah, and in a broad philosophical sense it kind of seems like Kavanaugh believes that the courts are just giving too much leeway to federal administrative agencies like the EPA, but really agencies in general. What do you sort of make of that, and why shouldn’t agencies be limited in this way by the courts?
BILL SNAPE: So that’s a great question, and Justice Gorsuch is also known for this sort of new conservative philosophy.
DHARNA NOOR: Exactly.
BILL SNAPE: And reading the several hundred cases of Kavanaugh on the D.C. Circuit, what I’ve come to realize is that his definition of agency deference, or giving too much deference or discretion to the agency, really is translation for Kavanaugh with how can I, Kavanaugh, cherry pick my favorite statutory congressional words so I can really get out of this case what I, Brett Kavanaugh, want?
In other words, let’s look at climate change and the EPA. Even though the Clean Air Act actually has the word ‘climate’ in it, even though the Clean Air Act says that any air pollutant that is injurious to human health and welfare should be regulated, Brett Kavanaugh still cannot bring himself to say that EPA has any authority to do that. And so what he does is he cherry picks other congressional language that sort of gives him some solace that maybe Congress isn’t sure. But when you look at the Clean Air Act itself, the very statute that’s been in place now for literally 40 years, You can’t help but to reach a completely opposite conclusion as to what Kavanaugh reaches.
So in sum, Kavanaugh’s rhetoric of agencies run amok is really an invitation for Kavanaugh to go out and look for select congressional language that supports his own pre-determined view.
DHARNA NOOR: So Professor Snape, you’re not a Professor Trelawney, of course, so I’m not expecting you to look into a crystal ball and be able to read the future. But I do want to ask you if you think that there’s any chance that he won’t be confirmed. I mean, we were speaking a bit before we started recording about the possibility that Rand Paul will not support his confirmation. So talk a little bit about what you expect, and some of the resistance that’s coming from your organization, the Center for Biological Diversity, and other environmental groups to this confirmation.
BILL SNAPE: Well, so here you have a president whose behavior is irrational, some would say bordering on treasonous, who now is getting a second pick of a Supreme Court justice; a pick this time that would radically alter how the Supreme Court operates. Justice Kennedy, as we’ve said several times, was the centrist. And so I think there’s a threshold question. Why is Trump getting this pick, and why is he getting this pick with someone who’s as ideological as Trump is himself, who’s going to change the balance so immeasurably?
And so across the board, environment, energy, women’s rights, civil rights, workers rights, all speaking out against Kavanaugh. And you’re seeing a broad and deep swath of American society say no, this guy does not represent American culture and values. This guy is representing the far-right, big business fringe. And you know, who knows how it will eventually turn out in the Senate. But I’ll say this: If Chuck Schumer can keep all the Democrats together and oppose this nominee both on procedural and substantive grounds, that means you only need one Republican to vote with the Democrats and this nomination will not go through. Whether that’s Rand Paul because of privacy concerns, Lisa Murkowski or Susan Collins because of women’s rights or workers rights, Jeff Flake or John McCain for just basic democracy reasons, there might be others. We just need one.
And it’s certainly looking a lot more possible that Kavanaugh’s nomination will at least be delayed, if not defeated, than it was even a week ago. I’m seeing the the bulwark of defense starting to be built. And I think there is going to be fireworks on this one. I think the battle has really just begun.
DHARNA NOOR: And I guess, lastly, within that battle, if he is confirmed, how does that impact the national fight against, or the national legal fight, even, against climate change?
BILL SNAPE: Oh, it significantly alters it, perhaps forever. I can’t, I can’t overstate the stakes that we have for the state of American law and the state of environmental law and the state of the health of our planet.
Justice Kavanaugh, if he were to be called Justice Kavanagh, would be the new Justice Kennedy, would be the deciding vote in many of these cases. And you really would have to be a fool at this point to think that he’s going to vote in favor of the environment. He has voted in favor of big business and big industry- which by the way, his dad was a big lobbyist for big industry- for his entire life. And I’m hard pressed to see how he’s all of a sudden going to change at this point.
He’s going to do a kabuki dance in front of the Senate Judiciary Committee that makes it seem like he’s a good old guy just trying to do, you know, a day’s work. But this is a guy who comes in with an agenda. And actually, not only is he biased, not only is he hypocritical, not only do I think that he’s not a good judge, you know, he really is immature, as well. When you look at his writings on presidential authority and immunity from civil suit, you know, when Bill Clinton was president, yeah, let’s go after him. Now all of a sudden Trump is president, and Bush was president. Now, you know, let’s keep the president away from that type of stuff.
And so this is a man who doesn’t seem to have any moral compass, any constitutional compass. He does whatever is best for the Republican Party at that time. And I think at this point in time we need a judge who transcends that. Whoever that judge is. The judge can be conservative, but the judge has to be honest and fair. And I think Judge Kavanaugh really fundamentally fails on that point.
DHARNA NOOR: But again, if he is confirmed, how does that impact your work? How does that impact what, sort of, the environmental legal community will do to continue this fight against climate change? And what does that mean tactically that will have to be done differently?
BILL SNAPE: Well, obviously the Supreme Court can’t control everything the district courts and courts of appeal and state supreme courts do. Eventually the U.S. Supreme Court can sink its teeth into it. But let me just say it more directly: if Judge [Kavanaugh] becomes Justice [Kavanaugh], I think you’re seeing the end of modern environmental law. I think that you will see a chipping away of climate change law, of endangered species law, of what qualifies as water of the United States, in terms of what qualifies for a corporation to be held accountable as a defendant for pollution. All of those legal theories will be in jeopardy, and perhaps being thrown out the window if Judge Kavanaugh becomes Justice Kavanaugh. It will be very, very bad.
DHARNA NOOR: Well, on that rather sobering note, Bill Snape, thanks so much for coming on today. We’ll definitely be in touch and keep up with you as we see how this battle continues to loom over us. Thanks for coming on today.
BILL SNAPE: Thanks for having me, as always.
DHARNA NOOR: And thank you for joining us on The Real News Network.