Posted on September 5, 2018 by Kenneth Kimmell
The confirmation fight over Supreme Court nominee Brett Kavanaugh is underway. Supporters and opponents are drawing battle lines over crucial issues such as abortion, health care, immigration, and whether the President is subject to criminal processes. But the nominee’s views on the role of federal agencies in protecting public health, safety and the environment deserve our attention as well.
Unlike others before him, Brett Kavanaugh is no “stealth nominee.” As a judge on the DC Circuit Court of Appeals, Judge Kavanaugh authored many opinions on the role of federal agencies, and these opinions provide an unusually expansive window into his thinking.
Unfortunately, a careful review of his opinions reveals a disturbing pattern:
Judge Kavanaugh is hostile to innovation by executive branch agencies. He has such rigid and antiquated views of the respective roles of congress and executive agencies that he leaves little room for federal agencies to try new approaches to existing problems or to take on new challenges. This should alarm not just those on the left who would like to see more robust federal response to threats to public health, the environment, worker safety and the like, but conservatives as well, who should also want government to be nimble and able to adjust to new circumstances.
To see this pattern, follow me on a guided tour of his thinking in three key cases.
Interstate air pollution and the “Good Neighbor Rule.”
Air pollution crosses state boundaries, and many states are in the unenviable position of having dirty air even though they are effectively controlling pollution sources within their state. For example, even if Maryland were to shut down every business in its state that emits ozone-causing pollutants, portions of the state would still be in violation of federal ozone standards due to pollution from neighboring upwind states. There is a provision in the federal Clean Air Act, colloquially called “the Good Neighbor” rule, that prevents one state from causing or significantly contributing to another state’s violation of federal air quality standards.
The problem is that it is fiendishly complex to implement the good neighbor rule. Many “upwind” states emit multiple pollutants to many downwind states, many downwind states receive multiple pollutants from multiple upwind states, and some states are both upwind and downwind states. Thus, it is exceedingly difficult to point a finger at any one particular upwind state and say that it is “responsible” for any downwind’s state air quality, and even more difficult to devise a formula to fairly and effectively apportion responsibility.
In 2011, after many false starts, the Environmental Protection Agency (EPA) crafted an ingenious “Transport Rule” to address the problem. The EPA conducted extensive analysis of the costs of pollution control to determine how expensive it would be, per ton of pollutant reduction, to ensure that upwind states in the aggregate do not cause downwind states’ air quality in the aggregate to exceed federal standards. The EPA then gave each upwind state a pollution “budget” for the state to use to reduce the pollutants that were wafting beyond their borders, based on this “cost per ton” reduction benchmark. In this way, just enough pollution would be reduced so that upwind states would not tip a downwind state into non-compliance, and the amount of each state’s pollution reduction would be based on a common yardstick of cost-effectiveness.
But Judge Kavanaugh struck this plan down. In his view, Congress had not expressly embraced this particular approach, and therefore the EPA was not allowed to implement it. His decision instead required EPA to determine each upwind state’s “proportionate responsibility” for pollution in downwind states and base the required reductions on that (even though the statute does not explicitly require that approach). Judge Kavanaugh’s decision largely ignored the compelling practical difficulty of assigning proportionate responsibility, or the many economic benefits of the EPA’s proposed approach.
As a result, his ruling would have consigned downwind states to many more years of air pollution while the EPA grappled with how to implement it.
Had Judge Kavanaugh’s “proportionate” responsibility approach been required by the law, that would be one thing. But it wasn’t. The Supreme Court, on a 6-2 vote that included Justices Kennedy and Roberts, found that that the statute did not require a proportionate responsibility approach (even assuming one could be fashioned). Instead, they ruled that Congress had vested the EPA with broad discretion to devise an appropriate remedy, and the Transport Rule was both fair and cost effective.
The Clean Power Plan oral argument
This same apparent hostility to agency innovation was on display in Judge Kavanaugh’s comments on the Clean Power Plan during a court hearing. That case involved a challenge to the Obama Administration’s Clean Power Plan, the nation’s first-ever rules to limit carbon pollution from coal and gas fired power plants, one of the largest sources of greenhouse gases in the United States. The Clean Power plan, a measure that received extensive input from Union of Concerned Scientists and many others, relied on an infrequently used provision of the Clean Air Act that allows the EPA to require polluters to use the “best system of emissions reduction” to address pollutants such as greenhouse gases.
After years of review and receipt of over 4 million comments, the EPA issued a final rule in October 2015. The EPA determined that the “best system of emissions reduction” for carbon pollution from power plants included three strategies that are in widespread use today—improving the efficiency of coal plants, switching from coal to gas, and substituting low or no carbon generation, such as wind, solar and nuclear. The EPA quantified the emissions reduction that would be possible using these strategies, and devised a national standard based on this quantification. The rule was intended to cut carbon emissions from power plants by approximately 30 percent by 2030, and formed a key component of the United States’ pledge to reduce its overall emissions as part of the Paris Climate agreement.
Industry and states filed suit to challenge the Clean Power Plan, and the case was heard by the DC Circuit court of appeals. No decision was ever issued on the case, but the court held an all-day oral argument in which Judge Kavanaugh participated. His questions and comments were revealing.
A major point of debate focused on the unusual nature of the regulation. When regulating conventional air pollutants, EPA often sets pollution control standards by focusing on what each plant can do with pollution controls at the source to cut pollution, e.g. a scrubber to lower sulfur dioxide emissions, or a baghouse to collect soot. In the Clean Power Plan, in contrast, EPA established CO2 limits by focusing not on what each individual plant could do to cut CO2, but rather what the system as a whole could do by shifting away from coal-based generation towards gas and renewables.
The opponents contended that this “beyond the fenceline” approach rendered it illegal, because Congress had not specifically authorized it.
Judge Kavanaugh’s questioning at the hearing demonstrated that he bought into this line of thinking. Judge Kavanaugh stressed repeatedly that the rule would have significant economic consequences, that the EPA was using a previously unused provision of the Clean Air Act to implement this approach, and that Congress had not specifically embraced the policy of shifting to low or no carbon generation. Judge Kavanaugh seemed unmoved by the strong counterarguments that: 1) EPA had a mandatory duty under the act to lower carbon pollution from power plants; 2) this was the most cost-effective and tested method of doing so; and 3) it fit the statutory command to deploy “the best system of emissions reduction.”
While the court never issued a ruling, it seemed clear that Judge Kavanaugh was prepared to strike down the rule on this basis, leaving behind no remedy for carbon pollution from power plants.
The Case of the Killer Whale
In 2010, an employee of Sea World was lying on a platform above a pool during a whale training show when a killer whale dragged her into the water, maiming and drowning her. This marked the third death by killer whales in a roughly 30-year period.
The Occupational Health and Safety Administration (OSHA) responded by requiring the company to ensure minimum distances and physical barriers between a trainer and a whale.
Sea World challenged this order, claiming that OSHA impermissibly extended its authority to regulate the risks of sporting events. Two of the three judges, including Merrick Garland, President Obama’s ill-fated Supreme Court nominee, dispensed with the challenge, ruling that OSHA had the authority to require these commonsense safeguards for workers.
Not so Judge Kavanaugh. His dissenting opinion begins as an elaborate paean to the thrill of sporting events in which physical risks are present. He never actually critiques the solution that OSHA devised on the merits, but rather deploys the familiar lawyer’s trick of a “parade of horribles,” claiming, e.g. that if OSHA can regulate killer whale shows, it can prohibit tackling in football or set speed limits on NASCAR racing (things that OSHA has never done). All of this, according to Kavanaugh, would go well beyond the authority that Congress intended OSHA to have.
As for the physical safety of employees who work with whales—according to Kavanaugh’s logic, that would be up to Congress to legislate.
What unites these opinions—and others like them—is that, in each of these cases, Judge Kavanaugh struck down solutions (or appeared poised to do so), when a federal agency responded to an existing problem with a novel approach or sought to address a new problem in a manner we should all value—with creativity, scientific evidence, consideration of costs and benefits, and an eye towards feasibility and practicality. In none of these cases did the agency violate any specific provision of its authorizing statute. But, in all of these cases, Judge Kavanaugh opposed these solutions under the theory that Congress had not specifically blessed the choice the agency had made.
Judge Kavanaugh and his defenders claim that curbing the power of agencies is essential to ensuring that elected leaders in Congress, rather than unelected bureaucrats, make the fundamental policy choices. This seemingly benign principle is either naïve, malevolent, or both.
The fact of the matter is that Congress is largely paralyzed and incapable of passing legislation on virtually any important issue—witness the stalemates on immigration, gun control, climate, health care, and many others. And even when Congress manages to overcome gridlock, as a necessity it legislates in broad generalities, not specifics. This is because Congress does not have a crystal ball to foresee all the possible variations of a problem or all the best solutions to it. That is why Congress wisely delegates implementation to agencies staffed with experts, and why we use a process of notice and comment to ensure that all views are heard before a regulation becomes final.
There is an important role for the courts in this rulemaking process judges must make sure that agencies do not violate the law or disregard sound reasoning and evidence. But Judge Kavanaugh takes the judicial role too far. His insistence that Congress specifically endorse an agency plan that is otherwise scientifically sound and legally within its discretion is a formula for paralysis, and the maintenance of the status quo (which helps explain his appeal to groups such as the Koch Brothersand the US Chamber of Commerce).
All of us will regret it if Judge Kavanagh’s reactionary view becomes the guiding principle of a new Supreme Court majority. With Congress already deadlocked and demonstrating almost daily basis its inability to respond to pressing challenges, we cannot thrive if executive branch agencies are paralyzed as well.