Democratic senators railed against U.S. Supreme Court nominee Brett Kavanaugh on Tuesday, saying that his bias against environmental concerns and in favor of big polluters is well documented: He has ruled for corporate interests 91% of the time.
Several key energy and environmental issues are at stake, including President Obama’s Clean Power Plan that requires a 32% cut in CO2 emissions by 2030 and from a 2005 baseline. The Supreme Court, for example, returned the case to a lower federal appeals court by a vote of 5-to-4 — a matter that is expected to wend its way back up to the High Court where Kavanaugh could be a deciding figure.
The U.S. Supreme Court mirrors American society — divided right down the middle and often with a 5-to-4 breakdown of key decisions. While Democrats are philosophically opposed to the judge who now sits on the U.S. Court of Appeals for the District of Columbia, they are also decrying the process: Kavanaugh was nominated 52 days ago, but senators just received Monday night 42,000 pages that detail his time as an official inside the Bush 11 White House — documents that they cannot possibly read overnight and in time to question the nominee.
“Republican interests want Kavanaugh on the court so badly that Republicans trampled so much Senate precedent to shove him through,” Senator Sheldon Whitehouse, D-RI, said in his opening statement. “No wonder the American people feel the game is rigged.”
He goes on to say that Judge Kavanaugh has been a lifelong “political operative” and that he knows exactly how the game is played: big business funds groups that “front” for their causes and provides the “dark money” that goes into ensuring public support. He notes that Kavanaugh has never tried a legal case and that he had made a name for himself during the impeachment of President Clinton.
At the same time, it was Kavanaugh who coached previous judicial nominees on what to say before the senators who would pass judgement on their qualifications — “to just tell Senators that they will adhere to statutory text, that they have no ideological agenda.” In other words, Whitehouse says that the Supreme Court nominee has perfected the art of “confirmation etiquette.”
Judge Kavanaugh’s Republican supporters emphasize that he is a well-qualified and fair-minded jurist. They say that Democrats and other critics are upset that their presidential candidate didn’t win the 2016 election and that Kavanaugh is now the target of this pent up anger.
As Senator Whitehouse says, though, a pattern has been established. And if presented in a court of law, both a judge and jury would have to consider those previous acts — or in this case, the legal decisions. To that end, Kavanaugh sides with big business over environmental issues 91% of the time. As White House Legal Counsel Dan McGahn has said, it is because Donald Trump realizes that his judicial nominees and the deregulatory process are closely linked.
“The future of combating climate change at the federal level rests largely in the hands of the Supreme Court, and Kavanaugh has shown in this case and others that his reading of the law is in direct conflict with the precedent set by Mass v. EPA. If he joins the bench, its days are almost certainly numbered,” the League of Conservation Voters writes.
“Kavanaugh’s philosophy of corporate supremacy rewards polluters for violating the law, because he’s repeatedly had their back, striking down any EPA efforts to keep our and air and water clean,” it concludes.
Massachusetts versus EPA refers to the 2007 ruling to allow CO2 to be considered a pollutant regulated under the Clean Air Act. EPA made it official in 2009, saying that CO2 was a danger to public health and welfare. And in 2014, the Supreme Court upheld that so-called endangerment finding, which serves as the foundation for the Clean Power Plan.
The League of Conservation Voters proceeds to list cases in which Kavanaugh sided against environmental interests: In 2012, the jurist voted to strike down a law that protects the air quality in those states that are the recipients of pollution generated “downwind.” The case, which was appealed to the U.S. Supreme Court, got overturned with those justices ruling that pollution knows no boundaries and that companies must be “good neighbors.”
The Supreme Court nominee also dissented in a case that would allow EPA to regulate greenhouse gases coming from vehicles. The league says that the case shows that Kavanaugh tries to rewrite laws from the bench — not merely call “balls and strikes,” as Kavanaugh has been trained to say.
Practice What He Preaches
That is, the majority of the federal appeals court said that Mass v. EPA applied in this motor vehicle case and that they also respected the so-called Chevron Doctrine, which relies on the expertise gathered by the experts asked to regulate the industry. But the league points out that Kavanaugh said that Congress referred only to “certain” pollutants — to which the majority retorted that the law applies to “any” pollutant released by cars and trucks.
“If adopted by the Supreme Court, his opinions could make it difficult, if not impossible, for citizens and public interest groups to use our laws and courts to hold polluters to account; make it harder for federal agencies to protect the environment and public health and make it easier for industry to get away with violating environmental laws,” Ana Unruh Cohen, managing director of government affairs at the Natural Resources Defense Council said.
The good news is that CO2 emissions are 18% less than they were in 2005, says the Energy Information Administration. That is mainly attributed to this country’s transition from coal-to-natural gas. Renewable energy prices, meantime, are falling and green fuels are gaining an increasing share of the electricity market.
And publicly-traded companies, overwhelmingly, say that they are committed to green energy goals and combating climate change: Ebay, IKEA, Intel, Mars Incorporated, Novartis, Owens Corning, PepsiCo, PG&E, Salesforce, General Mills, Kellogg Company, Hewlett Packard, and Starbucks and Uber Technologies, to name some.
Is Judge Kavanaugh relevant, given all the progress that has been made toward combating climate change? Companies, no doubt, will maintain their pledges to cut CO2 levels because they are driven to satisfy demand and to improve their brands. But the High Court has other critical environmental concerns before it, such as those to protect wetlands, endangered species and clean water.
If confirmed, Judge Kavanaugh has a duty to practice what he has been preaching to previous nominees — to actually be fair-minded and to give due process to all concerns, not just those that are financing the issues before the High Court.