For progressives, Democrats, and even some Republicans, the horrors of a Trump presidency are cloaked in judicial robes.

The retirement of Supreme Court Justice Anthony Kennedy may do more to weaken the nation’s environmental protections than the election of Donald J. Trump. A bold statement, I know, but a scenario all too easily imagined particularly when Kennedy’s successor is viewed as only one of the more than one hundred federal judges Trump will appoint during his four years in office. (See Figure)

Kennedy’s retirement guarantees that the most conservative U.S. Supreme Court in nearly a century will become even more so should Judge Kavanaugh be confirmed as Kennedy’s replacement.  In number, the split remains the same at five (5) conservatives and four (4) liberals. The numbers, however, do not tell the full story.

Many Republicans still rage over Justice Souter, a man sold to them by the Reagan White House as a true and reliable conservative. A justice, who upon announcing his retirement 19 years later, was vilified for having sided with his colleagues on the court who have preferred a course charted not by the fixed constellation of America’s Constitution, but rather the expansive and swelling currents of progressive political ideals. (emphasis added)

Souter’s votes to uphold Roe v. Wade, forbid public-school-sponsored prayers at graduation ceremonies and declare unconstitutional the public display of the Ten Commandments in two Kentucky counties, branded him as a traitor to the true conservative cause. Souter’s perceived treachery has led to a promise by many in the Republican party never to be fooled again. Whether Kavanaugh can convince groups on the right, like the American Family Association (AFA), that he’s a no-foolin’ conservative remains to be seen. As of the morning after Trump’s announcement, AFA is the only conservative group to acknowledge its opposition to Kavanaugh publicly. Other opponents may be waiting in the wings.

​Kennedy’s retirement, like Souter’s before him, was greeted with an audible sigh of relief by Republicans and for many of the same reasons. Kennedy is cast as an old-school conservative more in the mold of the man who appointed him—Ronald Reagan—than the man who to whom he submitted his resignation.

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​While cheered by Republicans, Kennedy’s retirement is mourned by environmentalists and many Democrats. Kennedy, like Sutor, voted with his liberal High Court colleagues in several landmark cases including Planned Parenthood v Casey which upheld Roe v Wade. Kennedy has also defended affirmative action, same-sex marriage, and abortion rights.

On the conservatives’ list of “unforgivables” are Justice Kennedy’s votes in Massachusetts v EPA and Rapanos v US—the cases that led respectively to the Clean Power Plan (CPP) and the Waters Rule of the US (WOTUS).  WOTUS and the CPP are among the most litigated environmental regulations in history.

Today those Obama era rules are under “review” by the Trump administration and expected either to be rescinded or substantially reduced in scope. The attempt to roll back those protections and others, e.g., methane emissions on federal lands, will not go unanswered. Moments after Trump and company make their intentions known they will be challenged in court by states, cities, environmental organizations, religious leaders, health professionals, business and industry groups, and justice advocates.

Kennedy’s absence bodes poorly for the environment. According to Harvard’s Richard J. Lazarus, Kennedy was the justice that advocates always tried to persuade, because he was persuadable. Brad Plumer writes:

Justice Kennedy often played a central role in these types of cases, concerned about government intrusions on private property but reluctant to sharply curtail the federal government’s authority under laws like the Endangered Species Act.

Kavanaugh’s elevation to the High Court solidifies the conservative majority even though the numerical split of 5 conservatives to 4 liberals will remain the same. Kavanaugh, like Gorsuch, is considered a textualist or originalist putting him closer to  Justice Scalia than Justice Kennedy in his judicial philosophy. His 300 written opinions show him to be a more reliable conservative than Kennedy and less likely to mellow once on the High Court bench like Justice Souter.

Justice Scalia described his originalist position as follows:

The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted. (emphasis added)

Judge Kavanaugh echoed Scalia in his brief remarks following Trump’s introduction.

 A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent. (emphasis added)

Kavanaugh’s ascent to the Supreme Court will not be good for the environment. Although impossible to predict with certainty, Kavanaugh’s 12 years on the D.C. Circuit Court of Appeals offers some insight into how he is likely to rule in environmental law cases as a Supreme Court justice.

Kavanaugh was one of the en banc panel of judges to hear oral arguments in West Virginia v EPA. This is the suit by 28 states, hundreds of companies and other interested parties, including 200 members of Congress, challenging the legality of the Clean Power Plan (CPP). A leading member of the gaggle of state attorneys general who brought the suit was the former administrator of EPA, Scott Pruitt.

During the oral arguments in West Virginia, Kavanaugh made several comments evidencing suspicion of EPA’s authority to issue the CPP under the Clean Air Act.

  • This is a huge case.
  • There is a moral imperative. There is a huge policy imperative. The pope’s involved
  • The policy is laudable. The earth is warming. Humans are contributing. I understand the international impact and the problem of the commons.
  • I understand the frustration with Congress. If Congress does this, they can account for the people who lose their jobs. If we do this, we can’t.

One cannot help but read Kavanaugh’s statement without hearing the words “yes global warming is a problem, but……” To fill in the blank, it is instructive to consider Judge Kavanaugh’s rulings and comments in two other cases.

Kavanaugh wrote the majority opinion in MexichemFluor v EPA  striking down EPA’s regulation of hydrofluorocarbons (HFCs). The majority considered the regulations beyond the authority granted the Agency by the Clean Air Act:

 The Supreme Court cases that have dealt with EPA’s efforts to address climate change have taught us two lessons that are worth repeating here. FirstEPA’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. 

 SecondCongress’s failure to enact general climate change legislation does not authorize EPA to act. Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change. (emphasis added)

Ironically, Kavanaugh’s opinion is contrary to Trump’s position on HFCs. The Administration has exhibited some willingness to regulate HFCs by remaining a party with other nations to the Montreal Protocol—a stance in opposition to the one on the Paris Accords.

MexichemFluor has not been finally decided. A petition to review (writ of certiorari) the case has been filed by the Administration and is still awaiting a decision by the Supreme Court.

A dissenting opinion by Judge Kavanaugh was used by Justice Scalia in Utility Regulatory Group v. EPAanother CAA case. Called an unconventional mishmash of decisions because several of the justices wrote overlapping opinions, UARG is important for what it might be telling about cases that have invoked the Chevron deference. The doctrine holds that when the legislative language is not clear, the courts will defer to an agency’s reasonable interpretation.

The court in UARG unanimously upheld EPA’s authority to regulate greenhouse gases but rejected the Agency’s attempt to expand the number of emitting sources it was attempting to regulate.

Scalia wrote the controlling opinion. In it, he adopted Kavanaugh’s earlier dissent language invoking the clear-statement rule. The rule instructs the courts not to interpret a statute in a manner that expands its scope unless the statute is unmistakably clear about its intent to do so. The rule “insists that a particular result can be achieved only if the text (and not legislative history) says so in no uncertain terms. (Popkin, Statutes in Court 201 (1999). (emphasis added)

Kavanaugh’s rulings have not been entirely anti-environment. However, even when upholding a regulation, he is quick to evidence his strict constructionist nature by indicating the approved action is within the strictures of the legislation and the Constitution.

Knowing what we know about Kavanaugh’s judicial philosophy and from what can be gleaned from his nearly 300 opinions while on the D.C. Circuit Court of Appeals it is possible to “speculate” about the positions he would take as a High Court Justice.

Massachusetts v EPA 2.0

Trump and company have apparently decided not to repeal the Clean Power Plan opting instead to gut most of its provisions replacing them with modest limits on individual coal plants. Rumors have it that the limits would be low enough that they could be met by tweaking generating unit efficiencies.

It should come as no surprise to anyone that a Trump “Clean” Power Plan would face immediate legal challenges by states, environmental organizations, citizen groups, and a large host of others. The lawsuits would be a replay of Massachusetts v EPA, the case that led to EPA’s endangerment finding and ultimately to the Clean Power Plan.

Massachusetts was a 5 to 4 decision; the fifth vote being cast by Justice Kennedy. The majority believed EPA had authority under the Clean Air Act (CAA) to regulate auto emission, i.e., carbon and other greenhouse gases (GHGs). More than the authority to regulate, the majority held that the Agency had an obligation to regulate emissions if the scientific evidence was considered sufficient to conclude that GHGs were harmful and contributed to global warming.

Massachusetts v. EPA 2.0 will hinge on the same or similar questions as the original.

  1. Does EPA have the authority to regulate CO2 emissions?
  2. Should SCOTUS defer to the Agency’s view on the above questions even should the Agency decide it has a very limited regulatory role to play?
  3. What does climate-science have to say about the causes and consequences of global warming?

It is reasonable to assume that Kavanaugh, like Justice Kennedy, would be the swing vote in Massachusetts 2.0–only in this case, he would be swinging from the other side of the plate reversing in whole or part the earlier decision. Consider then how a Justice Kavanaugh would answer the three questions.

Regarding question 1, Kavanaugh has acknowledged EPA’s authority to regulate CO2 emissions but within much narrower confines than the majority in Massachusetts. His ruling in the EME Homer Generation v. EPA suggests that he does not see the CAA giving EPA the authority to regulate all greenhouse gas emissions.

Kavanaugh’s decision in EME Homer Generation was to strike down the Clean Air Interstate Rule. The Rule regulates cross-border pollution from power plants. Although his decision was overruled by the Supreme Court, it was clear that Judge Kavanaugh believed the matter one that Congress must decide:

Congress could well decide to alter the statute to permit or require EPA’s preferred approach to the good neighbor issue. Unless and until Congress does so, we must apply and enforce the statute as it’s now written. Our decision today should not be interpreted as a comment on the wisdom or policy merits of EPA’s Transport Rule. It is not our job to set environmental policy. Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here.  

Kavanaugh is consistent in his rulings that EPA has only the authority specified in the statutes and compatible with the dead constitution that Scalia was quick to follow. The response to Question 2 depends on how Kavanaugh reconciles the conflict between the clear-statement rule and the Chevron deference.

Chevron holds that where statutory language is clear and unambiguous that language governs. When, however, the wording is ambiguous, as in the case of the CAA, the courts will defer to a reasonable interpretation of the meaning/purpose by the agency responsible for implementation of the act(s).

​The doctrine was established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.; it is one of the fundamental underpinnings of the modern administrative state. Invocation of the doctrine has been particularly critical to the development of environmental regulations.

According to the American Bar Association, the Chevron deference has allowed Congress to paint its environmental goals in broad terms while leaving to the EPA the task of determining how best to achieve Congressional goals and objectives. There are both practical and political reasons for legislative acts to avoid the level of regulatory detail rulemaking requires. The more specific the legislation’s language, for example, the more likely the points of contention.

The deference doctrine is seen by many—although not all—conservatives as a license for executive overreach. Justice Gorsuch wrote, as part of a three-judge panel in an immigration case, that [Chevron] permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.

Scalia and Gorsuch differ on this point. Justice Scalia not only championed the deference doctrine in general, he specifically used it in his dissent to fault the majority’s opinion in Massachusetts.

Remember that Massachusetts was suing EPA for its refusal to claim regulatory authority under the CAA and its belief that climate science was still unsettled. Scalia was willing to defer to EPA’s reading of the statute and the science:

 EPA’s interpretation of the discretion conferred by the statutory reference to “its judgment” is not only reasonable; it is the most natural reading of the text. The Court nowhere explains why this interpretation is incorrect, let alone why it is not entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). As the Administrator acted within the law in declining to make a ‘judgment’ for the policy reasons above set forth, I would uphold the decision to deny the rulemaking petition on that ground alone.

Scalia’s championing Chevron in Massachusetts doesn’t quite square with his invoking the clear-statement rule in UARG. Following the Chevron doctrine in the original Massachusetts case would have left EPA’s decision not to regulate tailpipe emissions in place based on the Agency’s conclusion that the science was still unsettled.

In Massachusetts 2.0 the plaintiff’s allegations would reflect and reference as legal authority the outcome in the original case. First, EPA has the power under the CAA to regulate CO2 and other greenhouse gas emissions. Second, the Agency has an obligation to regulate because the scientific evidence identifies GHG emissions as the cause of global warming and a danger to the health and welfare of society.

The scientific evidence today is more solid than it was in 2009 when the endangerment finding was made. Plaintiffs would also be able to point to the Trump administration’s own admission that climate change and its harmful consequences are real. The Administration would need to recognize climate change —at least to some degree—to issue its much-relaxed Clean Power Plan.

Climate-science (Question 3) in Massachusetts 2.0 would be a minor consideration. For textualists, what matters is the language of the statute.  Does the CAA give EPA the authority to regulate CO2 and other greenhouse gases? If so, how encompassing is the authority? Kavanaugh was quite specific in MexichemFluor:

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. 

In the absence of any precedents, the Supreme Court’s new conservative majority would undoubtedly reverse the original Massachusetts decision along the lines of Justice Scalia’s dissenting opinion in the case or on purely textualist grounds. There are, of course, precedents for the Justice Kavanaugh and his conservative colleagues to consider in rendering almost any judgment. The big question is—will they?

Climate defenders may find some solace in the legal concept of stare decisis. Roughly translated, the phrase is Latin for to stand by what has been decided. It’s the law’s way of saying precedents are essential in deciding cases. The doctrine encourages connectedness between decisions and dissuades sudden turns of interpretation. It is not a guarantee of slow and measured changes away from established case law, however.

Most landmark judicial decisions are the last in line of a series of related but more narrowly decided cases. Brown v Board of Education, for example, wasn’t the first case to address the question of separate but equal schoolsEarlier cases, e.g., Murray v. Maryland and Sweatt v. Painter, had also addressed the questions of separation and equality within academic settings but came to less sweeping conclusions.

Stare decisis is a legal concept; it is not an inviolate rule of the road that judges must follow when deciding cases. There are times when a court will decide the precedential basis of prior decisions is unworkable or so unjust as to warrant being abruptly overturned.

Judges will look to the strength and scope of previous opinions before applying them in a wholesale manner. In Sweatt v Painter, for example, the court was willing to entertain the notion that a separate law school for black students could be equal to the one for whites.

Because the separate “black law school” established by the University of Texas was an obvious sham, the Supreme Court reversed the state court’s decision and ordered Sweatt to be admitted to UT’s “white” law school. The nation’s schools, however, continued to be segregated for another four years.

​Divided decisions may also present an opportunity for a following court to veer away from an established precedent. Divided decisions may be those in which the vote was 5 to 4 or in which multiple judges felt compelled to explain why they voted as they did, e.g., UARG.

There are good reasons to believe that the legal underpinnings of the nation’s environmental regulations won’t be kicked out by Trump textualists. The Massachusetts decision, for example, has survived several subsequent legal challenges and is considered by many to be settled law.

To repeat what Judge Kavanaugh said in his brief White House remarks a judge must interpret the Constitution as written, informed by history and tradition and precedent. The words are right, but talk is cheap.

One of the more disturbing reports that I saw in the run-up to Judge Kavanaugh’s nomination suggested that another of Trump’s High Court candidates danced around a question having to do with Brown v Board of Education. Judge Amy Coney Barrett, who like Kavanaugh and others on Trump’s candidate list is a textualist was asked if she thought the 1954 case ending school segregation was decided correctly. A clear answer was never forthcoming.

The question wasn’t idle. It was based on an article in the Journal of Constitutional Law in which she wrote:

Precedent poses a notoriously difficult problem for originalists. Some decisions thought inconsistent with the Constitution’s original public meaning are so well baked into government that reversing them would wreak havoc. Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education. 

In the article, Judge Barrett quotes Justice Scalia in saying that originalists/textualists are pragmatic and can treat erroneous precedents as constitutional until such time as they feel it appropriate to correct the error. What time could be more appropriate for overturning precedents like Massachusetts v EPA that may be at odds with a literal reading of a “dead” Constitution than when sitting on the High Court bench?

Trump is not nearly finished filling judicial ranks with reliably conservative judges. Currently, there are 102 nominees either awaiting a Senate hearing or a Senate vote. There are dozens more yet to be nominated. Before Trump finishes his first term in office, he will have had the chance to fill 20 percent or more of the 677 federal judgeships with reliably conservative candidates.

Justice Kennedy may not be the last justice to retire during Trump’s first term. Justice Ginsburg is 85 years old. Justice Breyer is 80, just two years younger than Justice Kennedy. Both Ginsburg and Breyer were appointed by President Clinton.

The ages of the short-listed candidates to fill Kennedy’s chair were between 46 and 53. Assuming good health, Kavanaugh can expect to be still on the bench in 2050—past the time when global temperatures exceed the threshold 1.5 degrees Celsius. Age is a key characteristic of all of the judicial candidates given to Trump by the Federalist Society. Politicians may come and go, but federal judges are forever.

The judiciary has proven to be an essential check on the Administration’s efforts to deregulate the nation. A textualist dominated judiciary is going to change that because the simple fact is that most environmental legislation fails to spell out in sufficient detail what federal agencies are being mandated to do—often for good reason.

The only way that Trump and Senate Republicans can be stopped from tilting the judiciary to the right is by winning elections. Democratic chances to take back the Senate in November are not good.

Truth be told their chances look only to get worse in 2020 and 2022. Even should the Democratic candidate for president defeat Trump in 2020, a failure to flip the Senate will end up being a repeat of Obama’s second term—gridlock and resorting to executive authority. Confirmation of key executive agency nominees will be a struggle as will Democratic judicial nominees. In any event, there is no calling back the judges and justices appointed and confirmed by the Trump administration.

Climate advocates must come to grips with what appears to be the new normal—at the moment the new normal is conservatives controlling the White House and both chambers of Congress and making a move on the third branch of government.

I cannot recall another time in which judicial nominees have been asked to give their word that they will rescind specific cases like Roe that have become settled law. Nominees whose judicial philosophy requires them to play along until they are in a position to dismantle the administrative state, invalidate paper money and reverse Brown v Board of Education or Massachusetts v EPA.

I worry that the judiciary is being dragged into the very swamp Trump is so fond of saying he will drain but somehow manages to fill with counselors and judicial nominees who kowtow to a man who clearly has disdain for the law; a man who demands fealty to the person rather than loyalty to the nation.

In the end what worries me most are those who believe the constitutional foundation of our great nation died the day it was born–I fear they will make it so.