The Nickel Report

On July 9, President Trump announced Judge Brett Kavanaugh of the Court of Appeals for the DC Circuit as his nominee to replace retiring Justice Anthony Kennedy on the Supreme Court. Kavanaugh has developed an extensive history of jurisprudence during his twelve-year tenure on the DC Circuit. And, given the DC Circuit’s heavy administrative law caseload, Kavanaugh has authored numerous opinions involving environmental law. The upcoming confirmation process is sure to include a focus on Kavanaugh’s robust environmental and administrative law record and what it might portend for the future.

First, Kavanaugh is viewed as a textualist, adhering strictly to the words of federal statutes. Many of his opinions—and particularly his dissents—emphasize the importance of looking for clear congressional authorization. In one vigorous dissent, Judge Kavanaugh objected to the denial of en banc review in U.S. Telecom Association v. Federal Communications Commission, which involved a challenge to the FCC’s Net Neutrality rule. Turning to Supreme Court precedent, including Utility Air Regulatory Group v. EPA, Kavanaugh observed that Congress must speak clearly if it wishes to assign to an agency decisions of “vast ‘economic and political significance.’” In that case, he concluded the FCC had acted without such authorization. Kavanaugh’s inclination to follow Supreme Court precedent on the UARG “clear statement” principle could have significant implications for environmental law, where agency assertions of authority to address issues like climate change often have tenuous foundation in the statute.

Second, Kavanaugh’s environmental opinions have generally fared well before the Supreme Court. On several occasions, the Supreme Court has reversed or narrowed DC Circuit decisions from which Kavanaugh dissented, including in Michigan v. EPA (2015), where Kavanaugh observed that it was not logical to read a broad statutory phrase like “appropriate and necessary” to preclude consideration of costs in regulatory decisions. Likewise, in Utility Air Regulatory Group v. EPA (2014), the Supreme Court unanimously agreed with Judge Kavanaugh that the Clean Air Act does not require thousands of small stationary sources to obtain “major source” pre-construction permits. In EME Homer City Generation, LP v. EPA, on the other hand, the Supreme Court read more flexibility into the statute than did Judge Kavanaugh, remanding a rule interpreting the Clean Air Act’s provision on interstate air pollution to the DC Circuit for further proceedings.

Third, reviewing statutory language based on its plain meaning has led Kavanaugh, on several occasions, to agree with EPA and even environmental groups. For instance, in Natural Resources Defense Council v. EPA, Kavanaugh’s majority opinion struck down EPA’s rule giving cement manufacturers an affirmative defense for “unavoidable” malfunctions as exceeding EPA’s authority (finding that the Clean Air Act vests the courts, rather than EPA, with authority to determine whether civil penalties are appropriate). In National Mining Association v. McCarthy, Kavanaugh upheld EPA’s authority to review, and if necessary veto, Army Corps of Engineers’ mining permits under the Clean Water Act (declining to interpret “statutory silence [as] an implicit ban on” EPA consulting and coordinating with the Corps). In another case, Kavanaugh upheld EPA’s approval of California emissions standards for in-use non-road engines in American Trucking Associations v. EPA (rejecting an argument that California’s standards interfered with other states’ rights not to follow them as unsupported by the Clean Air Act).

If confirmed, Kavanaugh could be called upon to consider two environmental cases already docketed for the 2018 Fall Term. In Weyerhaeuser Co. v. US Fish and Wildlife Service, the Court has been asked to determine the limits of the government’s power to designate critical habitat, particularly where the land in question is not occupied by a species and could not be successfully occupied without significant changes to the land. Land designated as critical habitat is potentially subject to significant regulatory restrictions on development, recreational use and resource utilization. Oral argument is set for October 1, the first day that Kavanaugh would hear oral argument. In another case, Sturgeon v. Frost, the Court will consider whether the National Park Service has authority to regulate state, tribal and private waterways located within the Yukon-Charley Rivers National Preserve in Alaska as “public lands.” The Court’s decision could touch on questions of state sovereignty and guide interpretation of other federal statutes governing public lands in the western United States.

If Kavanaugh is confirmed, he may also have occasion to consider key tenets of administrative law, including the so-called doctrine of Chevron deference. In the past, Kavanaugh has questioned whether uncritical application of Chevron deference to agency statutory interpretations is an abdication of the role of the judiciary under the Constitution. Although a nominee’s past decisions and statements do not guarantee their positions on issues, once confirmed, Kavanaugh would undoubtedly add another active voice to the ongoing debate over the respective roles of courts and agencies in interpreting federal statutes.

Jean Fundakowski is a law student at University of California, Berkeley School of Law who joined Hunton Andrews Kurth as a Summer Associate in 2018.