By Holly Burke, League of Conservation Voters
Today we heard the opening remarks of Brett Kavanaugh’s Senate confirmation hearing, and starting tomorrow will be the only opportunity for Senators to publicly question Kavanaugh’s record, philosophy, and commitment to fairness before they vote on his lifetime appointment to the highest court of the land. As a nominee with one of the longest and most explicit anti-environment records, you can imagine, we at LCV have some questions that we hope he clarifies in these hearings.
Kavanaugh has ruled time and time again for big polluters over the public health, and has twisted his reading of the law to reach these results. We want clarity on the contradictory legal methods he has used to further anti-regulatory and pro-corporate policy goals.
And despite Kavanaugh’s lengthy anti-environment record from his time as a judge, there is still a lot we don’t know about him that needs to be addressed. Specifically, the administration and Senate Republicans have hid the vast majority of Kavanaugh’s White House records. What are they concealing? His involvement in the Cheney Energy Task Force? A close relationship between the Bush administration and Enron? The administration’s efforts to roll back protections for clean air, clear water and public lands?
There is much ground to cover, but here are the top 10 questions we at LCV want insight into:
1. Will Kavanaugh stand up to the Trump administration’s efforts to unlawfully delay and roll back lifesaving environmental protections?
BACKGROUND: Over the past two years, the Trump administration has repeatedly rolled back environmental protections that keep our air and water clean, citing economic concerns. Earlier this month the D.C. Circuit rejected the Trump administration’s efforts to delay a chemical disaster rule that provides “lifesaving protections.” Kavanaugh sat on this case, but did not participate in the decision because of his pending nomination. Since the case is settled, Kavanaugh should make his position clear: did he plan to join his fellow judges in determining that the delay was “arbitrary and capricious,” or would he follow his previous decisions to protect big business from life saving regulations?
2. When has Kavanaugh ever weighed public health benefits above corporate profits, and why in critical cases has he avoided considering public health altogether?
BACKGROUND: Judges are often tasked with balancing costs and benefits. In previous environmental cases (White Stallion Energy Center v. EPA, Mexichem Specialty Resins, Inc., v. EPA, Mingol Coal v. EPA, among others) Kavanaugh chose to ignore the public health benefits of environmental protections and only focused on the costs to businesses. And when the Chamber of Commerce has been involved in a case, Kavanaugh has ruled for their side more than 75 percent of the time. Specifically, in Mexichem Specialty Resins v. EPA, Kavanaugh argued for the court to indefinitely suspend limits on hazardous emissions from the manufacturing of polyvinyl chlorides (PVCs), which would have allowed companies to continue release “more than a dozen known or suspected carcinogens and other hazardous” materials at rates at least 10 times higher than what the EPA deemed appropriate. Kavanaugh justified his decision because of the cost for the PCV companies, but failed to consider the harm from the continued pollution.
3. Why is Kavanaugh so concerned with the costs to polluters, but only when it leads to weaker pollution limits?
BACKGROUND: In EME Homer City Generation v. EPA, Kavanaugh argued that the EPA could not rely on cost-effectiveness in setting its cross-state air pollution standards, an argument that the Supreme Court rejected in a 6-2 decision. Based on Kavanaugh’s rulings, it seems that he believes that considering the cost of a regulation is necessary if it leads to less restrictive environmental protections, but not the other way around.
4. Will Kavanaugh say unequivocally that the Clean Air Act covers greenhouse gases, or should we assume that he will undo Massachusetts v. EPA the first chance he gets?
BACKGROUND: In Mass. v. EPA, the Supreme Court ruled in a 5-4 decision that the EPA had the authority to regulate greenhouse gas emissions under the Clean Air Act and rejected the Bush administration’s rationale for failing to regulate emissions. Kavanaugh’s previous rulings on Clean Air Act cases, especially Coalition for Responsible Regulation v. EPA, use language that make clear he doesn’t believe the law should cover greenhouse gases.
5. Why is Kavanaugh’s use of the Chevron doctrine so inconsistent, and seemingly only rely on agency interpretation when it results in rolling back environmental protections?
BACKGROUND: Resulting from the 1984 Supreme Court case Chevron v. Natural Resources Defense Council the Chevron doctrine establishes that in an instance of ambiguous statutory authority, courts should rely on an agency’s reasonable interpretation of the language. Kavanaugh has shown hostility to this doctrine, repeatedly dissenting from his colleagues and attempting to substitute an agency’s reasonable reading of a statute with his own. The exception, such as in Natural Resources Defense Council v. EPA, is when an agency’s interpretation results in rolling back crucial environmental protections.
6. Will Kavanaugh admit that in courtrooms today it’s easier for a company to establish injury than a person, and that his stance on standing will make this problem worse?
BACKGROUND: One of the most fundamental principles addressed by the courts is legal standing, the ability for an individual to access the courtroom and seek justice. Kavanaugh has a broad view of standing for corporations, saying “a dollar of economic harm” is enough, but had a narrow view for the rest of the public, rejecting a challenge to a safety standard because the risk of harm was not imminent enough. What is the equivalent of a “dollar of harm” for a person who faces health risk from dirtier air and water, or who faces the multifaceted harms caused by climate change?
7. Why does Kavanaugh have such a narrow view of the Endangered Species Act and how can he provide any assurance that he will approach cases involving this law in an unbiased manner?
BACKGROUND: Kavanaugh has expressed skepticism towards the Endangered Species Act in multiple cases that have come before him, taking a narrow view of the authority to establish critical habitat. In Carpenters Industrial Council v. Zinke (2017), he marveled at the size of the protection area when granting lumber companies standing to challenge the designation, and in Otay Mesa Property v. U.S. Dept. of Interior (2011), Kavanaugh rejected the methods the Fish and Wildlife Service used to establish endangered species critical habitat. This coming term, the Supreme Court will take up a case on this issue.
8. Which of the multiple Bush-era attacks on the environment did Kavanaugh participate in during his years in the White House counsel’s office and as staff secretary for George W. Bush?
BACKGROUND: Kavanaugh served for several years in the Bush administration, in close consultation as a counsel and later staff secretary to the president. During this time, the administration took repeated steps to roll back environmental protections and promote the profitability of fossil fuel companies. This included the Cheney Energy Task Force, which allowed energy companies to rewrite our nation’s energy policy behind closed doors. Unfortunately, the unprecedented obstruction by Republican leadership means we don’t have full access to Kavanaugh’s White House records, and so we have no way of knowing the level of his complicity in these decisions.
9. Does Kavanaugh concede that the widespread passage of racially discriminatory voting laws following the Supreme Court’s ruling in Shelby County v. Holder undermines the Court’s findings in the case?
BACKGROUND: In Shelby County v. Holder, the Supreme Court struck down critical protections within the Voting Rights Act, making it easier for states with historical connections to racially discriminatory voting laws to put new restrictions into place. And they have — according to the Brennan Center, 23 states now have more restrictive voting laws than in 2010 and several laws have been rejected for their explicit discriminatory purpose. In Shelby County, Chief Justice Roberts dismissed the argument that improvements to racialized voting barriers were in part because Section 5 of the Voting Rights Act acted as a deterrent for covered jurisdictions who would otherwise engage in discriminatory voter restrictions. However, since Shelby County decision, nearly every state covered by the preclearance standard has put restrictive voting laws into effect, including laws that have been struck down for their racial discriminatory purpose.
10. Does Kavanaugh agree that judges, when considering voting rights cases, have an obligation to consider the widespread and blatant attempts to use voting laws to discriminate, as well as the coded language used to accomplish these goals?
BACKGROUND: In South Carolina v. Holder, Kavanaugh upheld a South Carolina voter ID law, arguing that it was not enacted for a discriminatory purpose. Following the Supreme Court’s Shelby County decision, a number of states have sought to restrict their voting laws and several cases have shown the clear racial motivation. However, some judges have taken remarkable steps to uphold these laws, giving politicians ample room to hide racially discriminatory motivations.