In naming Brett Kavanaugh as his pick for the Supreme Court’s open seat, President Donald Trump is advancing a judge widely seen as unfriendly to environmental regulation.
The seat opened in June with the retirement of Justice Anthony Kennedy, providing an opportunity for Trump to tilt the court rightward for years to come.
Kavanaugh, 53, has served as a judge on the US Court of Appeals for the DC Circuit for 12 years, staking out steadily right-wing positions in many decisions. On the environment, Kavanaugh is likely to be hostile to regulation of pollution, climate, and endangered animals, conservation groups say.
"He is pretty consistently anti-environment on every front," Center for Biological Diversity senior counsel Bill Snape, a law professor at American University, told BuzzFeed News. "I call him Lord Voldemort," said Professor Snape.
In 2016, Kavanaugh noted, “The Earth is warming. Humans are contributing.” He called a law intended to address climate change “laudable,” but also suggested that this was best left to Congress to sort out, rather than the courts.
And in past cases over the last decade, Kavanaugh has argued that climate and environmental regulation is a legal overreach — “even where science and emerging new information might be on the side of taking more environmental action,” said Joe Goffman of Harvard Law School’s Environmental Law Program.
In 2012, Kavanaugh wrote a 2–1 appeals court decision invalidating Environmental Protection Agency rules regulating air pollution that crosses state lines, arguing that the agency had overstepped its authority and siding with power companies. The Supreme Court reversed the decision, with Kennedy agreeing with the majority. (Kavanaugh was once Kennedy’s clerk.)
“He read into the statute a provision that simply wasn’t there,” Goffman said. “The second mistake he made was to second-guess the EPA on a very complicated technical decision that involved some very delicate judgment.”
In 2011 Kavanaugh ruled that the sighting of four endangered fairy shrimp on a 143-acre parcel of land near San Diego did not make it “critical habitat” under endangered species rules. A similar case involving the designation of critical habitat for a frog species in Louisiana is now on the court’s fall docket. Kavanaugh would “destroy” the Endangered Species Act, said Snape, who led the fairy shrimp case for the losing side.
Property rights advocates who are critical of environmental laws praised Trump’s pick: “Judges like Kavanaugh play a vital role in protecting individual rights, including freedom of speech, economic liberty, property rights, and other guarantees of freedom,” said a statement from the Pacific Legal Foundation.
Kavanaugh will now go before the US Senate for confirmation, where a simple majority vote would be enough to put him on the court.