In his time as a federal appeals court judge, U.S. Supreme Court nominee Brett Kavanaugh has issued decisions to check federal agencies' powers and overturn certain environmental regulations affecting the energy sector.
If confirmed to the high court, Kavanaugh could shift the Supreme Court more solidly pro-business as he replaces Justice Anthony Kennedy, a swing voter who has sided with the majority in several cases defending agency authority and more stringent air and water quality protections. Kennedy recently announced that he will retire July 31.
U.S. Supreme Court nominee Brett Kavanaugh.
Kavanaugh, whom Trump nominated July 9 to replace Kennedy, has served since May 2006 on the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit handles the bulk of lawsuits against federal agency actions and policies.
During his time on the D.C. Circuit, Kavanaugh pushed several times to rein in the power of federal agencies that regulate the energy sector and other industries.
Kavanaugh has also participated in decisions involving the Federal Energy Regulatory Commission, including authoring a 2017 opinion in NRG Power Marketing v. FERC (No. 15-1452) that curbed FERC's authority to modify regional power grid operators' market rules. The court found that FERC overstepped its jurisdiction by conditioning approval of the PJM Interconnection's proposed revised buyer-side mitigation rules on the grid operator adopting substantial changes the commission had crafted.
Kavanaugh also wrote an opinion for a three-judge D.C. Circuit panel that deemed the Consumer Financial Protection Board's single-director structure unconstitutional. The board's structure "poses a far greater risk of arbitrary decision-making and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency," he wrote.
The panel suggested the agency be moved to the executive branch, making it subject to presidential oversight. However, the entire D.C. Circuit later reversed that ruling, finding that the board was structured much like other independent agencies.
Kavanaugh has taken aim at U.S. Environmental Protection Agency actions as well. He dissented with the majority of a three-judge panel on a challenge to the EPA's Mercury and Air Toxics Standards, or MATS, in White Stallion Energy Center v. EPA (No. 12-1100). The majority upheld the MATS rule, deferring to the EPA's interpretation of an ambiguous statute to decide the agency did not have to consider costs as part of the rulemaking.
But in a partial dissent, Kavanaugh said the notion that Congress would authorize the agency to regulate without any consideration of regulatory costs was unreasonable. The case later moved to the Supreme Court, which ruled that the EPA did not properly consider the cost of compliance when developing MATS.
Kavanaugh was also part of a panel that vacated the EPA's Cross-State Air Pollution Rule, known as CSAPR. He and fellow D.C. Circuit Judge Thomas Griffith found in EME Homer City Generation v. EPA (No. 11-1302) that the rule required states to make emissions reductions beyond what was legally required and that the EPA failed to give states the opportunity to reduce emissions before imposing federal implementation plans.
The Supreme Court reversed the D.C. Circuit's decision, determining that the EPA's over-control of some states did not require the entire rule to be vacated. However, the high court agreed with the D.C. Circuit that the rule required unneeded emissions reductions of smog-forming pollution in some upwind states.
Turning to coal, Kavanaugh also objected to the EPA's retroactive veto of a Clean Water Act permit for Arch Coal Inc.'s Spruce No. 1 mountaintop mine in West Virginia. The D.C. Circuit backed the EPA's veto of the permit in a split decision. But in a dissenting opinion, Kavanaugh said the EPA "did not come close" to justifying its revocation of the permit, which the agency vetoed four years after initially approving it amid concerns about downstream water quality.
Republican leaders in Congress praised Trump's choice for the high court. Kavanaugh's judicial record "demonstrates a firm understanding of the role of a judge in our Republic: Setting aside personal views and political preferences in order to interpret our laws as they are written," said Senate Majority Leader Mitch McConnell, R-Ky.
Kavanaugh's skepticism of certain EPA regulations has environmental groups fighting his nomination to the Supreme Court.
"We oppose Judge Kavanaugh's nomination because his overly restrictive approach to agency authority, and limited view of the public's right to access the courts, could jeopardize the ability of federal agencies to carry out their vital missions and threaten the American public's access to justice," Earthjustice President Trip Van Noppen said.
Senate Democratic Leader Chuck Schumer, D-N.Y., said his party will work to block Kavanaugh's nomination in favor of "a more independent, moderate selection."