Supreme Court pick could slow US climate efforts

President Donald Trump's pick to fill a vacancy on the US Supreme Court is likely to create a majority of justices that are resistant to Environmental Protection Agency (EPA) efforts to address climate change under existing law.

Trump nominated judge Brett Kavanaugh of the DC Circuit Court of Appeals to fill the Supreme Court seat being vacated by justice Anthony Kennedy. In announcing the pick last night, Trump called him a "brilliant jurist" who has shown a "rigorous adherence to the law" in his opinions.

"Judge Kavanaugh has impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law," Trump said.

Kavanaugh's confirmation would give conservatives on the court a solid 5-4 majority, likely making it more difficult for future administrations to use the Clean Air Act to reduce greenhouse gas (GHG) emissions, or for critics of the current EPA to force more aggressive action as it tries to roll back much of former president Barack Obama's climate change agenda.

That prospect has Senate Democrats and environmental groups gearing up to challenge the nomination.

"He has undone environmental protections, he has challenged them, and our Clean Air and Clean Water Acts would be at risk. He would make it far more difficult for regulations to exist to enforce those laws," Senate minority leader Chuck Schumer (D-New York) said today.

Kennedy often served a swing vote and sided with EPA in some major cases, including the 2007 ruling in Massachusetts v. EPA in which the court said the agency had the authority to regulate GHGs under the Clean Air Act. His likely replacement has said there are limits on what EPA can do under the law.

"EPA's well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate. The agency must have statutory authority for the regulations it wants to issue," Kavanaugh wrote last year in a 2-1 decision overturning an EPA regulation to stop the use of certain hydrofluorocarbons to help address climate change.

That decision may be a good representation of what to expect from Kavanaugh should he be confirmed by the US Senate.

"He will construe EPA authority very narrowly and virtually always, but not every single time, in favor of regulated parties and against environmental interests," said Ann Carlson, an environmental law professor at the University of California Los Angeles.

In 2009, he wrote a dissent in a case in which the DC Circuit upheld the agency's plan to include GHG emissions in the main Clean Air Act permitting programs for pollutants such as SO2 and NOx.

"Here, as I see it, EPA went well beyond what Congress authorized," he wrote.

The Supreme Court in a 5-4 decision in 2014 agreed with Kavanaugh and overturned the DC Circuit.

He also expressed skepticism of EPA's authority to issue the Clean Power Plan for CO2 emissions from power plants, when the court heard oral arguments two years ago. The case has been on hold for more than a year with no decision issued.

Kavanaugh's views on a key legal doctrine, known as Chevron deference, also suggest he believes EPA is on a tight leash. Under the doctrine, courts give federal agencies significant latitude in implementing regulations, if the law under which they are issued is ambiguous and the agency's approach is based on a reasonable interpretation of the statute. EPA has frequently cited Chevron when defending major regulations such as the Clean Power Plan.

Kavanaugh in a law review article in 2016 said Chevron was a "judicially orchestrated shift of power" from Congress to the executive branch. And last year he suggested there may be limits in how Chevron should be applied, especially when reviewing "major rules."

At least two sitting justices, Neil Gorsuch and Clarence Thomas, have faulted Chevron over concerns it lets federal agencies take actions never imagined by the US Congress.

Some EPA critics are hopeful a shift in the court could lead to a weakening of Chevron. If another critic of Chevron reached the bench "we can really go to town," Competitive Enterprise Institute director of energy and environment Myron Ebell, a former member of Trump's transition team, said before Kavanaugh's nomination.

Kavanaugh's opponents face a tough task. Republicans, who control the Senate with 51 seats, need only a simple majority to confirm Kavanaugh. Unless Democrats find a way to block his confirmation, federal efforts to address climate change are likely to slow down further in the coming years.