Less than a week after the announcement that Justice Anthony Kennedy would retire, President Trump nominated D.C. Circuit Judge Brett Kavanaugh as Kennedy’s replacement. On the latest episode of our podcast Trump on Earth, we learn more about Kavanaugh’s environmental record and what cases he could be weighing in on if confirmed.
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Our guest is Melissa Powers, a law professor and director of the Green Energy Institute at Lewis & Clark Law School in Oregon.
Kavanaugh, 53, is a Washington insider and a Yale graduate. He’s considered a solid conservative with some 300 opinions and 12 years on the federal bench. So how are environmental lawyers, in general, feeling about this news? Powers says there’s a pretty broad level of concern about some of the decisions that Judge Kavanaugh has issued, but the pick could have been worse.
“There’s a little bit of hope that he won’t necessarily be as radical as some of the potential appointees might be when it comes to the environment, especially in terms of climate change,” says Powers.
In a couple of different decisions, Judge Kavanaugh has made it clear that he doesn’t doubt the science of climate change. He has specifically referred to regulation of greenhouse gases and climate change mitigation as a vital policy objective. And he told a courtroom two years ago, “The earth is warming. Humans are contributing. There is a moral imperative. There is a huge policy imperative…The pope’s involved.”
But that said, Powers says that in a number of cases, Judge Kavanaugh uses concerns about separation of powers and concerns about statutory construction as a way to prevent agencies from using existing laws in order to regulate climate change and greenhouse gases.
“So while he seems to believe that it’s a serious threat, he has issued a number of decisions that really constrain EPA’s ability to maneuver under the Clean Air Ac, for example, and other statutes that might be really important tools to regulate greenhouse gases.”
Listen to the entire episode to hear more from Professor Powers about Kavanaugh’s environmental record. She also talks about Justice Kennedy’s environmental legacy. Kennedy was the swing vote in Massachusetts v. EPA, considered the most consequential ruling on climate change. Without his vote, we might still be fighting to have CO2 recognized as a pollutant at all.