Brett Kavanaugh Anthony Kennedy

Some are in a tizzy about the nomination of Brett Kavanaugh to replace Supreme Court Justice Anthony Kennedy. Most are concerned Kavanaugh might overturn Roe Vs. Wade. But some are concerned that Kavanaugh might harm our environment.

Justice Kennedy always voted to expand the reach of the Environmental Protection Agency (EPA), while Kavanaugh’s decisions show he feels the EPA often overreaches its authority, when it should be deferring to Congress. Kennedy’s ruling in Massachusetts v. the Environmental Protection Agency ordered the EPA to determine whether carbon monoxide should be considered a pollutant. When the EPA came out with its “endangerment finding,” CO2 was legally declared a harmful greenhouse gas.

This led to Obama-era cooperation between the EPA and the National Highway Traffic Safety Administration (NHTSA) which in turn led to the tightening of emissions standards and the raising of fuel economy standards. Kennedy’s decision also translated to the creation of the EPA’s Clean Power Plan, which requires coal-powered power plants to either reengineer to make use of carbon-capture technology or use cleaner fuels.

Sounds good, on the face of it, but in 2012, the EPA demanded that 28 states reduce their smog emissions, which might drift across state lines, carrying pollutants like sulfur dioxide and nitrous oxide, which can cause health issues. Kavanaugh, in his majority opinion, struck down the emission rule on two counts. The restrictions went beyond what was necessary to solve the problem, by requiring the states in question to cut their emissions beyond what would be wafted downwind, crossing state lines. Kavanaugh also states that the EPA didn’t give these states a reasonable amount of time to implement their own plans for reducing emissions.

In West Virginia v. EPA, in which states challenged the Clean Power Plan and its right to regulate greenhouse gas emissions from fossil fuel power plants, Kavanaugh expressed concern about Congress being excluded from establishing the law on this score. Kavanaugh said:

“I just want to say, on the policy I understand, and the 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.”

In other words, Kavanaugh also worries about climate change and the environment and what humans can do preserve what we have. And yet, he believes that the right to decide on matters related to the environment belongs only to Congress and not to any branch of the executive. Since Congress has not yet passed any such legislation, the EPA, according to Kavanaugh, exceeds its rights in laying down the law regarding emissions.

The environment seems to be as important to Kavanaugh as it is to Kennedy. But Kavanaugh believes in the process of law winning out. He believes in American democracy overall. And the history of the EPA’s overreach tends to illustrate why it should not hold the reins over how we implement solutions for reducing emissions.



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