Guest essay by Eric Worrall
Greens are worried Judge Brett Kavanaugh on the Supreme Court will impede their efforts to stretch Congressional mandates beyond their original intent.
What Brett Kavanaugh on Supreme Court Could Mean for Climate Regulations
Trump’s second Supreme Court nominee has a history of opposing regulations Congress didn’t explicitly authorize. That could be a problem for greenhouse gas policies.
BY MARIANNE LAVELLE
OCT 6, 2018
In his dozen years on the federal appeals court that hears the most disputes over government regulatory power, Judge Brett Kavanaugh compiled an extensive record of skepticism toward the government’s powers to act on climate change.
In particular, while Kavanaugh has repeatedly voiced the belief that global warming is a serious problem, he challenged the argument that Congress has given the Environmental Protection Agency authority to do something about it.
“Judge Kavanaugh isn’t anti-environmental, but he tends to be anti-agency,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “He’s often struck down regulation that he didn’t think Congress had authorized explicitly enough. He reads statutory authority very narrowly and that is a major concern for things like the Clean Power Plan,” President Barack Obama’s signature climate initiative.
Kavanaugh articulated his narrow reading of the law during oral arguments in September 2016 on the Clean Power Plan. Kavanaugh said the Clean Air Act was “a thin statute” to support the rule, likening the program for reining in carbon emissions from electric power plants to President George W. Bush’s post-9/11 move to detain a suspected enemy combatant without due process—an effort that the Supreme Court ruled unconstitutional.
“War is not a blank check,” Kavanaugh said. “Global warming is not a blank check, either, for the president.”
What a disaster for the green movement. How will activists regulators ever achieve anything, if they have to keep asking Congress to sanction their efforts?