Five Ways Brett Kavanaugh Tried to Mislead the Senate — and the Public — about His Environmental Record
By Marc Boom, Natural Resources Defense Council
During the Senate Judiciary Committee’s confirmation hearing for Brett Kavanaugh, there were a number of firework moments that left many wondering how candid the judge was being about his record. Kavanaugh continued in this form when it came to answering questions about decisions he made in environmental cases—offering answers that mischaracterized his 12 years on the bench.
Honesty is obviously a central quality for a Supreme Court justice. Kavanaugh’s attempts to mislead the Senate and the public are just one more reason that disqualifies him from this important position. (In case you missed it, here is NRDC’s letter opposing his nomination)
If you aren’t constantly tuned in to C-SPAN like we are, here are five ways Kavanaugh tried to mislead you about his environmental record:
1. His Record: Senator Hatch tossed Kavanaugh an opportunity to deflect criticism of his environmental record, and Kavanaugh took it, saying, “In some cases I have ruled against environmentalist interests and in many cases I have ruled for environmentalist interests.” Woo boy. “Some” and “many” seem to be flipped here, given that Kavanaugh has ruled against improving environmental protections in 89 percent of the cases in which he wrote an opinion. Claiming he’s even-handed, or even favors environmental interests is a big whopper. And what cases did he cite to prove this claim? That brings us to #2:
2. NRDC v. EPA: Kavanaugh cited NRDC v. EPA (hey that’s us!!), a case about pollution from cement plants. When our senior attorney on the case, John Walke, heard what Kavanaugh claimed, he couldn’t believe his ears. Kavanaugh ruled against us on the three substantive environmental issues in the case, including upholding lax pollution limits for soot pollution, lead, arsenic, chromium, and many non-mercury toxic metals, and only sided with us on the jurisdictional issue. Some might say this was a stretch; others have said it’d be like Paul Manafort claiming that he was vindicated in his recent trial because he was convicted on only some of the charges against him. Well, what about the other cases he mentions?
3. Other Cases: The other cases Kavanaugh cites are:
- National Mining Association v. McCarthy;
- American Trucking Association v. EPA;
- National Association of Manufacturers v. EPA;
- Utility Air Regulatory Group v. EPA; and
- In re Murray Energy Corp.
But most of these rulings are procedural. For example, take the first case. National Mining Association addressed the procedures that agencies could use when reviewing mining permits and held that an agency’s “guidance” document could not be challenged because it had no legal impact. And take the last case, too: in In re Murray Energy Corp., Judge Kavanaugh merely ruled that the initial challenge to the EPA’s signature climate change rule was premature because the rule was not yet final. Once the rule did become final, Kavanaugh made clear he would vote to strike it down. So once again, he’s misleading the committee on his record.
Stop anti-environment Supreme Court nominee Judge Kavanaugh
Even if these six cases were environmental victories, let’s not forget that when you look at Kavanaugh’s full record, he still ruled against the environment in a clear majority of his cases. And they were troubling opinions. Cases like Mingo Logan Coal Co. v. EPA, where Kavanaugh would’ve overturned the EPA’s action preventing a mining company from covering more than six miles of Appalachian streams beneath rock, dirt, and toxic coal mine waste, or Mexichem Fluor, Inc. v. EPA, in which he ruled against the EPA’s authority to regulate super climate pollutants called HFCs (hydrofluorocarbons), or…well, again, here’s the full list of his troubling record of opinions on the environment. Note that Kavanaugh has never written a dissent where he sided with environmental interests.
4. Interpreting statutes: Later in the hearing Senator Klobuchar asked Kavanaugh how he views the ability of agencies, like the EPA, to interpret the law when congressional language is ambiguous. In his answer, Kavanaugh said he doesn’t “think courts should add requirements that [Congress] haven’t put in” the law.” Looking at his record, it seems like this isn’t uniformly applied.
He has ruled that an agency cannot consider costs to justify imposing additional measures on laggard polluters (EME Homer City Generation, L.P. v. EPA) but must consider costs when they might support weakening restrictions, like stopping the EPA from regulating toxic mercury emissions from power plants (White Stallion Energy Center, LLC v. EPA), despite the fact that the Clean Air Act does not expressly contain that requirement. This should be a huge red flag for any senators considering voting in favor of his nomination. Putting Kavanaugh on the court could mean an activist judge who creates new legal requirements out of ambiguous language, despite being accountable to no one.
5. Absence of his record of policymaking: OK, this one isn’t so much what Kavanaugh said as it is what he may have said that we have no access to. Kavanaugh’s big claim to senators is that over his career as a judge, he has done his best to interpret Supreme Court precedents and apply them to cases he hears. But on the Supreme Court, he’d be in a position to create and overruleprecedent, not just interpret it. There are materials that would help people anticipate how he would do that, namely the records reflecting his work in the George W. Bush White House.
Unfortunately, Kavanaugh’s political allies have so far succeeded in blocking the Senate and the public from seeing that full record. Only an estimated paltry 4 percent of Kavanaugh’s public service record has seen the light of day. President Trump has claimed executive privilege, and his administration has slow-walked document production from his days serving in the George W. Bush administration. Many of the documents that have been released are not even public, but instead marked “committee confidential” by the Republican-controlled Judiciary Committee.
Why does that matter for the environment? Well, in 2004 alone, the Bush administration tried to weaken environmental protections more than 150 times. Documents related to those efforts undoubtedly crossed Kavanaugh’s desk. We can’t truly understand what he thinks on environmental protection without seeing those records. Until they’re released, no senator should assume s/he has a full understanding of Kavanaugh’s true record on the environment or other critical public policy issues.
Judge Kavanaugh’s testimony before the Senate Judiciary Committee reveals a pattern of misleading, omitting, and evading answers about his record and approach to the law. It’s a disturbing pattern, and it should make all senators think twice about supporting his nomination. Kavanaugh’s pattern of hiding the ball and his judicial record on the environment make it very clear that he should not be confirmed as the country’s next Supreme Court justice.