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 September 11, 2018
Kavanaugh's views on EPA's climate authority are dangerous and wrong

 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:

Earth is warming, and humans are contributing, and I understand the international collective action problem here, I understand that very well, and I understand the frustration with Congress, I live that, too, everyone understands that. But under our system of separation of powers, and this is why it's so important that we maintain that, Congress is supposed to make the decision. You might say, you know, this Congress is not going to, they're not going to do anything, but that's not how we get to make decisions ... for a big question like this Congress can do things like job training programs, and community college assistance, and welfare assistance, and drug programs for the people who are out of work, and that becomes more of a problem, that's why the separation of powers principle matters, because Congress can look at something like this in a well-rounded approach, and that was the difficulty obviously that happened in the Senate. But for us to do it, for you to do it, all the people who are left behind are just left behind.

Kavanaugh is right that Congress could and should do a better job tackling carbon pollution than EPA. For example, Hillary Clinton developed plans to both tackle climate change and help coal communities adapt. But Republicans in the White House and Congress are owned by the fossil fuel industry, and thus unwilling to advance serious climate legislation.

However, the fact that Congress won't act as long as Republicans are in charge doesn't lessen EPA's authority to regulate carbon pollution. Kavanaugh's unwillingness to defer to EPA's legal authority is wrong. The Clean Air Act is very clear that EPA should regulate pollutants that may endanger public health and welfare, and greenhouse gases certainly qualify.

If Kavanaugh is seated on the Supreme Court, he'll join the other conservative justices in eroding EPA's ability to regulate carbon pollution. EPA won't take serious action until there's a Democrat in the White House anyway; nor will Congress act unless Democrats are in charge of that branch of government. Kavanaugh just represents one more Republican obstruction to climate action.