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From the Experts

Kavanaugh Guided by Industry, Not Rule of Law

September 4, 2018
By
Patrice Simms Vice President of Litigation, Washington, D.C.

We agree with the Heritage Foundation on this point: Let’s assess Judge Brett Kavanaugh’s record using the “Schumer Standard.” That’s exactly why the Senate should reject him.

Map of Washington, D.C.

On September 4, the Senate Judiciary opened hearings on D.C. Circuit Court Judge Brett Kavanaugh’s nomination to the Supreme Court. Not surprisingly, large corporate entities and polluting industries are engaging in a multi-million-dollar spin campaign to support his nomination and create a deeply conservative majority on the Supreme Court that would further tip the scales of justice and the law away from the people’s rights, and more towards corporate control of our democracy.

Predictably at the center of the spin-control fray are the deeply conservative advocacy organizations funded by millions in dark money from their corporate benefactors. Case in point is Thomas Jipping of the Heritage Foundation, who on August 13 published a misleading and transparently stilted opinion piece in the National Review in support of Judge Kavanaugh’s nomination. As an organizing theme, Jipping argues that the Senate should apply the “Schumer Standard” to his judicial record to determine Judge Kavanaugh’s worthiness for a lifetime seat on the highest court in the land. I happen to agree with Jipping on this one point — the “Schumer Standard” is indeed the right test to apply, and a test Judge Kavanaugh catastrophically fails.

The “Schumer Standard” dates to a 2009 statement by Senate Minority Leader Chuck Schumer, during the Justice Sonia Sotomayor nomination, that the Senate should look to see if a nominee “follows the law rather than personal views” and you will know it because “he or she will not always side with a predictable party.”

In their rush to provide a cogent justification of Judge Kavanaugh’s supposed lack of policy agenda, Jipping and the Heritage Foundation cherry-picked five cases involving the Environmental Protection Agency — cases that, on closer examination, actually help to illustrate his favoritism for industry and corporate polluter interests. Moreover, Heritage completely ignores 14 other cases where Judge Kavanaugh clearly opposed cleaner air and water. Simply put, every time Judge Kavanaugh had a viable option to side with polluters over public health, he did so.

In every instance, his written opinions either side against the substantive regulatory claims that would be more protective of public health and the environment, or he constructs legal theories that would procedurally and legally weaken public health protections over the long-term. His decisions therefore serve, uniformly, to further an agenda that weakens regulatory protections and undermines the public’s ability to hold government and polluters accountable. In this regard, he has:

  • Sought to constrain the EPA’s power to implement the law;
  • Attempted to limit the effectiveness of laws like the Clean Air Act to protect public health;
  • Questioned or blocked the government’s ability to address climate change;
  • Sought to weaken public participation in rule-making and government accountability to the people;
  • Blocked public interest groups from even getting into court; and
  • Given more power to unelected judges to adopt ad-hoc interpretations of statutory language, while giving no weight to the subject matter experts at agencies like the EPA.

Okay, with that large lens in mind, let us turn to the five EPA-related cases Jipping cited for his “Schumer Standard.” To begin with, only two of his five cases even involve a public interest plaintiff seeking more public health protections. Not a compelling start. So do these two cases reveal some before-now unknown pro-public-health bent in Judge Kavanaugh? Yeah … nope.

In Natural Resources Defense Council v. EPA (2014), Judge Kavanaugh ruled against the public interest plaintiffs on every one of their claims related to the stringency of the EPA’s clean air standards (the claims that mattered most to public health protection). The one point on which Judge Kavanaugh sided with the public interest litigants involved the EPA’s attempt to infringe on judicial authority by creating procedures for regulatory “affirmative defenses” to citizen suits. For Judge Kavanaugh, because it involved the EPA usurping power properly reserved for the judiciary, this was a step too far, even in service of letting polluters off the hook.

Next, Jipping cites Judge Kavanaugh’s concurrence in Center for Biological Diversity v. EPA (2013), which he calls a “ruling for environmentalists.” Again, Jipping misses the larger picture. This decision is more accurately described as a dissent masquerading as a concurrence. First, as Judge Kavanaugh explains, he only joined with the majority in rejecting EPA’s rule that exempted certain carbon dioxide emissions from regulation because he felt bound by “controlling precedent” to do so. Nowhere, for example, did he justify his decision based on the public health or environmental significance of the pollution reductions at issue.

But his decision in this case gets worse. Having reluctantly ruled for the environmental plaintiffs, Judge Kavanaugh then argues — wait for it — that EPA really shouldn’t have the authority in the first place to regulate greenhouse gases at all. He then goes on to revisit his anti-environmental dissent in the case he cited earlier as “controlling precedent” — Coalition for Responsible Regulation v EPA (2012). Judge Kavanaugh says specifically, “I have mixed feelings about this case … I believe, contrary to this Circuit’s precedent, that the PSD statute does not cover carbon dioxide, whether biogenic or not.” So to be clear here, what Judge Kavanaugh really said in the Center for Biological Diversity case is that, if it were up to him, the EPA would lack authority to regulate greenhouse gases under this provision of law at all. And the scary proposition is that as a member of the U.S. Supreme Court, it would be up to him (at least in part). Funny that Jipping didn’t mention any of this in his storytelling.

In sum: Jipping tries to justify the idea that Judge Kavanaugh isn’t a “predictable vote” for polluters with just two public interest cases — one in which Judge Kavanaugh ruled against all of the public-interest litigant’s challenges to the EPA’s actual air pollution standards, and another where he suggests that protections against greenhouse gases really shouldn’t exist at all. I guess Jipping was hoping we’d just take his word for it.

Jipping also references three cases that were not initiated by public interest petitioners, but were rather industry challenges to EPA regulations. In each of these, the legal principles that compelled rejection of industry’s claims were well established, and the outcomes in these cases were virtually unavoidable.

The first of these, Utility Air Regulatory Group v. EPA (2014), is a case that shows nothing more than Judge Kavanaugh’s willingness to respect basic administrative law principles, and to allow EPA to make the most straightforward of technical determinations within its area of expertise. The majority opinion that Judge Kavanaugh joined in that case simply recognized that several industry claims had to be dismissed because the industry groups had failed to meet basic legal prerequisites for challenging the agency action in court. Aside from that, Judge Kavanaugh merely conceded that it was appropriate to respect the EPA’s expert technical judgement on the unremarkable proposition that monitoring visible smoke from a smokestack is a reasonable way to ensure compliance with pollution limits — about as “plain vanilla” a ruling as possible. Not exactly a forceful pro-environment statement, and not particularly compelling support for the Heritage Foundation’s theory that Judge Kavanaugh meets the “Schumer Standard.”

In National Association of Manufacturers v. EPA (2014), Judge Kavanaugh ruled against an industry challenge to an EPA rule setting particulate matter air-pollution standards. Here, however, a clear (and binding) legal test had already been established by past cases. And the court again confronted the longstanding principle requiring judicial deference to non-arbitrary technical determinations made by agency experts (here regarding the health impacts of particulate matter pollution). There was little at play but dueling technical arguments, and the court simply (and unremarkably) concluded that EPA’s technical conclusions had not been proven obviously faulty.

Judge Kavanaugh did hint, however, at some previously expressed biases against government transparency and accountability to the public — views that if taken to the extreme he has previously suggested could be devastating for public health and environmental protection. In rejecting industry claims that the EPA had failed to adequately solicit and respond to comments, Judge Kavanaugh leans on his belief that agencies do not have a particularly demanding legal obligation to explain their actions to the public. He has in the past suggested that courts have insisted on too much agency transparency and have over-scrutinized agency rules, expressing his preference for a more limited interpretation of the nation’s bedrock public participation law, the Administrative Procedure Act (APA), to allow for “simple and speedy” agency rules (American Radio Relay League v. FCC (2008)). As a matter of history, absent transparency and public scrutiny, agencies tend to become captured by their regulated industries and are ineffective at protecting the public.  

Finally, in American Trucking Associations v. EPA (2010), Judge Kavanaugh authored an opinion for the court that upheld EPA’s approval of emissions limits for non-road engines that the state of California had adopted under California-specific Clean Air Act authority. It did so on the grounds that the “Clean Air Act assigns California… and not the (EPA) the primary role in setting limits on emissions from in-use non-road engines” and that “EPA must approve” the California regulation unless EPA concludes that California failed to justify its rule under three specific statutory criteria. Here California had made the necessary demonstration, and EPA had properly approved the state rule, consistent with the statutory criteria and prior case law — pretty open and shut. For Judge Kavanaugh, this case pitted his pro-polluter agenda against his anti-federal authority bias — a dilemma that he resolved in this instance in favor of deference to state decision-making, noting that “Congress consciously chose to permit California to blaze its own trail with a minimum of federal oversight.” While this particular case may have had a positive environmental impact — at least within the state of California — we know from long experience that devolution of regulatory authority more generally away from federal agencies and to the states almost always benefits polluters and hurts public health and the environment.    

What Jipping fails entirely to share in his spin piece is the bigger picture — which is especially damning. Of the 26 cases involving the EPA where Judge Kavanaugh drafted either the opinion, a concurrence, or a dissent, in almost every case he landed on the side of less environmental and public health protection. Of the 18 of these cases that reached the substance of underlying clean air or clean water law (rather than purely procedural matters), the environment was 2–16. The 16 cases:

  1. Americans for Clean Energy v. Environmental Protection Agency, 864 F.3d 691 2017 — Majority Opinion — Sided with industry in vacating an EPA rule on renewable fuels
  2. Center for Biological Diversity v. EPA, 722 F.3d 401, 2013 WL 3481511 (2013) — Dissent masquerading as concurrence — Argues EPA “simply lacks statutory authority” to regulate greenhouse gases, and if his choice, would strike down rule
  3. Coal for Responsible Regulation Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012) — Dissent — Clean Air Act term “any air pollutant” does not mean what it says — excludes greenhouse gases and EPA rule would “impose significantly higher costs on businesses” and should be struck down
  4. Communities for a Better Environment v. EPA, 748 F.3d 333 (D.C. Cir. 2014) — Majority Opinion — Okay for EPA to not review and strengthen primary air quality standards for carbon monoxide.
  5. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012) — Majority Opinion — Struck down EPA rule because EPA cannot impose reasonable and achievable pollution reduction obligations on upwind states whose pollution discharges contribute to dangerous air quality in downwind states.
  6. EME Homer City Generation, L.P v. EPA, 795 F.3d 118 (2015) — Majority Opinion — On remand, again rejected this life-saving rule in state-by-state “as-applied” challenges
  7. Energy Future Coalition v. E.P.A., 793 F.3d 141 (D.C. Cir. 2015) — Majority Opinion — Upheld regulation requiring biofuels to be “commercially available” before being tested as replacements, which had the effect of impeding market access to petroleum-based gasoline alternatives
  8. Grocery Mfrs. Ass’n v. EPA, 704 F.3d 1005 (D.C. Cir 2013) — Dissent from denial of rehearing en banc — Would have granted industry standing because “EPA will lose if we reach the merits. The E15 waiver plainly violates the statutory text.”
  9. Howmet Corp. v. Envtl. Protection Agency, 614 F.3d 544 (D.C.Cir. 2010) — Dissent — Argued EPA’s interpretation of statute stretched its authority too far and “courts must not permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.”
  10. Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017) — Majority Opinion — Struck down EPA rule requiring less harmful replacement chemicals to ozone-depleting chemicals
  11. Mexichem Specialty Resins, Inc. v. E.P.A., 787 F.3d 544 (D.C. Cir. 2015) — Dissent — Argues industry has likelihood of success on the merits and EPA rule imposing wastewater pollution limits should be stayed
  12. Mingo Logan Coal Co. v. EPA, 829 F.3d 710 (D.C. Cir. 2016) — Dissent — Would have struck down EPA action, arguing that EPA should have considered cost to coal companies when vetoing a permit that would have allowed those companies to dump mining wastes into waterways
  13. NRDC v EPA, 749 F.3d 1055 (D.C. Cir. 2014) — Majority — Was okay for EPA to weaken air quality standards and delay implementation of protections
  14. Sierra Club v. EPA, 536 F.3d 673 (D.C. Cir. 2008) — Dissent — Argued state and local authorities could not impose more stringent air-quality monitoring requirements
  15. Texas v. EPA, 726 F.3d 180 (D.C. Cir. 2013) — Dissent — Would have struck down EPA permitting requirements for large construction projects of major sources of greenhouse gases, such as factories.
  16. White Stallion Energy v. EPA, 748 F.3d 1222 (D.C. Cir. 2014) — Dissent — Would strike down EPA rule reducing toxic air pollution from coal- and oil-fired utility plants, writing in cost-consideration not in the statute, while ignoring real world health benefits of rule

And in challenges brought by public interest plaintiffs, those groups were 0–5 (in light of what he really said did in the NRDC and CBD cases). Where regulated industry was the plaintiff, Judge Kavanaugh sided with polluters in 11 out of 13 of these cases. That’s not a good record.

So I say emphatically, YES, senators should apply the “Schumer Standard” to Judge Kavanaugh, and reject his nomination, because it’s a test that he fails. Despite Jipping’s protestations, Judge Kavaugh is not a “rule of law” judge but instead one who predictably sides with industry profits over public health. (89 percent of the time for less clean air and water when he reaches the substance of Clean Air Act and Clean Water Act public protections.) He ruled in favor of industry against EPA regulation in any case where the law or the facts might plausibly allow such an outcome, which was 85 percent of the time (there was no case for example where Judge Kavanagh issued a dissent or concurrence arguing a position more favorable to the environment than the majority).

All senators must demand a new nominee — one that can actually meet the thoughtful “Schumer Standard.” In the meantime, we can all find some solace in the fact that in 7 of the 11 industry cases in which Judge Kavanaugh sided with industry, his anti-public-health-protection views were out-voted and our air and water are cleaner for it. 

Additional resources on Judge Kavanaugh’s anti-environment record: