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The Environmental Stakes of Brett Kavanaugh's Supreme Court Nomination

At his nomination on July 9, Brett Kavanaugh claimed, "No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination." Official White House photo by D. Myles Cullen

When President Donald Trump announced Brett Kavanaugh as his pick to replace retiring Supreme Court Justice Anthony Kennedy on Monday, he picked the potential justice with the most environmental law experience of his final four frontrunners, E&E reported.


The announcement sent environmentalists and legal experts scouring through his more than 300 rulings on the D.C. Circuit Court to reveal a contradictory picture: Kavanaugh accepts the science behind climate change, but has ruled against the Environmental Protection Agency's (EPA) attempts to do anything about it.

"Judge Kavanaugh isn't anti-environmental, but he tends to be anti-agency," Michael Gerrard told Inside Climate News. Gerrard is the 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."

In a 2012 case, for example, he dissented from a majority ruling upholding Obama-era attempts to limit greenhouse gas emissions, arguing Congress had not empowered the EPA to do so.

"The task of dealing with global warming is urgent and important," he wrote, according to The New York Times. But, despite that, he ruled the "EPA went well beyond what Congress authorized."

Kavanaugh's past rulings are particularly important because, if confirmed, he could have a major impact on the Supreme Court's environmental decisions. This is because Kennedy was a key swing vote on the issue.

In Massachusetts v. EPA, Kennedy broke a tie in ruling that the EPA could regulate greenhouse gases under the Clean Air Act, even though the act does not mention them explicitly, since it was written in the 1970s, before climate change was a major concern.

Kavanaugh's strict adherence to the letter of Congressional laws suggests to legal scholars he would have ruled differently.

"I think he would have decided against Massachusetts v. EPA," University of California Los Angeles environmental law professor Ann Carlson told The Atlantic. "Everything points to the direction of a very narrow construction of the Clean Air Act, and that will seriously limit the EPA's authority to regulate greenhouse gases in a way that makes a meaningful difference."

Kavanaugh decided against the EPA in three major cases involving the Clean Air Act during the Obama years, The Atlantic reported.

In one, E.M.E. Homer City Generation v. Environmental Protection Agency, he struck down the EPA's ability to regulate air pollution that passed from one state to another. The Supreme Court later overturned that decision, in a ruling Kennedy supported, according to The New York Times.

Kavanaugh has ruled in favor of environmental actions in some instances, however. In 2013, he ruled that it was legal for the EPA to revoke a mountaintop-removing mining permit in West Virginia, though he ruled against the EPA in a different legal argument involving the same case, according to The Atlantic.

In 2014, he also decided in favor of the Natural Resources Defense Council in a case challenging pro-industry policies for emissions from cement kilns, The New York Times reported.

Harvard law professor Richard J. Lazarus told The New York Times that Kavanaugh was not hostile to environmental laws per se, but that his approach might harm the environment as long as the legislative branch declines to pass new ones.

"Congress stopped making clean air laws after 1990, so the EPA has to work with increasingly tenuous statutory language. In effect, his approach to environmental law would make it harder to address current problems so long as Congress remains out of the lawmaking business," Lazarus said.

However, Kavanaugh's approach could also stymie the Trump EPA's attempts to deregulate independent of Congress.

"If he faces some Scott Pruitt-era rule that was kind of done quick and dirty, I don't think the administration should expect him to rubber-stamp it," Case Western Reserve University law professor Jonathan Adler told The Atlantic. "He doesn't grade federal agencies on a curve."

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"We are disappointed with the jury's initial decision, but we continue to believe firmly that the science confirms glyphosate-based herbicides do not cause cancer," Bayer spokesman Dan Childs said in a statement reported by The Guardian. "We are confident the evidence in phase two will show that Monsanto's conduct has been appropriate and the company should not be liable for Mr. Hardeman's cancer."

Some legal experts said that Chhabria's decision to split the trial was beneficial to Bayer, Reuters reported. The company had complained that the jury in Johnson's case had been distracted by the lawyers' claims that Monsanto had sought to mislead scientists and the public about Roundup's safety.

However, a remark made by Chhabria during the trial and reported by The Guardian was blatantly critical of the company.

"Although the evidence that Roundup causes cancer is quite equivocal, there is strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue," he said.

Many regulatory bodies, including the U.S. Environmental Protection Agency, have ruled that glyphosate is safe for humans, but the World Health Organization's International Agency for Research on Cancer found it was "probably carcinogenic to humans" in 2015. A university study earlier this year found that glyphosate use increased cancer risk by as much as 41 percent.

Hardeman's lawyers Jennifer Moore and Aimee Wagstaff said they would now reveal Monsanto's efforts to mislead the public about the safety of its product.

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Hardeman's case is considered a "bellwether" trial for the more than 760 glyphosate cases Chhabria is hearing. In total, there are around 11,200 such lawsuits pending in the U.S., according to Reuters.

University of Richmond law professor Carl Tobias told Reuters that Tuesday's decision showed that the verdict in Johnson's case was not "an aberration," and could possibly predict how future juries in the thousands of pending cases would respond.