Alex Wong / Getty Images
By Patrice Simms and Brielle Green
The confirmation process for Justice Brett Kavanaugh was painful for many of us. Earthjustice stood staunchly against his nomination—both because of the jurist we know Justice Kavanaugh to be, and because we believe Dr. Christine Blasey Ford. Despite having every opportunity to get it right, our lawmakers once again failed all of us by charting a course that was deeply disrespectful to survivors of sexual assault and offensive to our bedrock principles of equity and justice.
<p>While Kavanaugh's confirmation has raised concerns about the impartiality of the judicial branch, we believe the courts remain a place for those left behind by the political system to seek justice. And Earthjustice has a plan to keep them that way.</p><p>First, the laws and statutes protecting our communities, our public health, and our planet remain robust. Earthjustice has nearly 50 years of experience navigating and pushing forward those laws to save lives, reduce pollution and preserve our most irreplaceable natural wonders. Those laws don't simply disappear because Brett Kavanaugh got confirmed. In fact, the clear mandates in those laws provide a powerful tool that is more important than ever to push back against polluters and their cronies.</p><p>Second, the legal landscape for key environmental fights extends far beyond just the Supreme Court. In fact, the vast majority of cases we work on are ultimately decided by lower courts. Earthjustice has filed more than 110 lawsuits against the Trump administration's efforts to gut environmental safeguards, and we are winning many of those fights long before they ever reach the Supreme Court.</p><p>Third, while the Trump administration's efforts to fill federal courts at all levels with polluter-friendly judges are deeply worrying, those judges are still beholden to the laws and precedents already on the books. They cannot simply ignore the statutes that Congress has adopted. Earthjustice will continue to hold the government and corporations accountable for following those laws.</p><p>And finally, Earthjustice will continue to fight in the courts because it's what we do. It's who we are. And it's what is right.</p>
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<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8xODcyNDg1NS9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYxODEwNTQ2OH0.lU0-Btlii4Xwi7Jp8BXe7XcI7vbwpd2G6KD-E9ldY3Q/img.jpg?width=980" id="d8342" class="rm-shortcode" data-rm-shortcode-id="58cd4124dac33a841dce72853c88deef" data-rm-shortcode-name="rebelmouse-image">
<small class="image-media media-caption" placeholder="add caption...">Earthjustice attorney Deborah Goldberg at work in an Albany courtroom.</small>
<small class="image-media media-photo-credit" placeholder="add photo credit..."> Chris Jordan-Bloch / Earthjustice</small></p>
<p>This is a profoundly difficult time for those of us fighting for justice, but we cannot give into despair or throw our hands up at the obstacles ahead of us. We must continue protecting not only the health of our planet and its people, but the health of our democracy and our justice system. Earthjustice will remain on the front lines of these fights—in the courtroom, in communities and in the halls of Congress. I hope you will continue to stand alongside us.<br></p>
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Geoff Livingston / Flickr / CC BY-NC-ND 2.0
By Scott Faber
In testimony before the Senate Judiciary Committee Wednesday, Supreme Court nominee Brett Kavanaugh grossly misrepresented his record on the environment.
<p>Kavanaugh, President Trump's nominee to fill the court's critical swing seat, cited four cases as evidence of his willingness to rule against industry to protect the environment.</p><p>But in one of those <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/ACAE17D2A8131EDF85257CBE004DD976/%24file/10-1371-1488926.pdf" target="_blank">cases</a>, Kavanaugh actually ruled in favor of weakening air quality rules for cement plants. In <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/79B9F1D1DC6DCD9585257CD3004EC5EB/%24file/13-1069-1492213.pdf" target="_blank">another</a>, Kavanaugh doubled down on his position that the U.S. Environmental Protection Agency (EPA) lacks the legal authority to regulate the greenhouse gases that cause climate change. In a third <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/60CD71B7AF215A8B85257C98004D98AF/%24file/12-1166.pdf" target="_blank">case</a>, Kavanaugh's concurring opinion laid the groundwork for challenges of EPA regulations by polluting industries.</p><p>What's more important are the cases he failed to mention. The fact is that in <a href="https://earthjustice.org/sites/default/files/files/Summary%20table%20of%20Judge%20Kavanaugh%27s%2026%20EPA%20opinions%20hyperlinks.pdf" target="_blank">16 of 18 cases</a>, Kavanaugh has ruled in favor of more air and water pollution, and in <a href="https://www.huffingtonpost.com/entry/kavanaugh-endangered-species_us_5b7f15f8e4b0729515114437" target="_blank">17 of 18 cases</a>, he has ruled to weaken protection for endangered species.</p><p>So, when it comes to the environment, Judge Kavanaugh has ruled for industry 32 out of 35 times. That's good news for industry, but <a href="https://www.ewg.org/news-and-analysis/2018/09/brett-kavanaugh-good-news-polluters-bad-news-public-health#.W5BCwS2ZNTY" target="_blank">really bad news</a> for the rest of us.</p><p>Kavanaugh has <a href="https://www.afj.org/wp-content/uploads/2018/06/Coalition-for-Responsible-Regulation_-Inc.-v.-EPA_-2012.pdf" target="_blank">ruled</a> that the EPA lacks the authority to regulate greenhouse gases. He ruled against regulating <a href="https://www.leagle.com/decision/infco20120821272" target="_blank">cross-state air pollution</a>. He ruled in favor of <a href="https://scholar.google.com/scholar_case?case=18109074323810897431&q=mingo+logan+coal&hl=en&as_sdt=6,50" target="_blank">dumping coal waste</a> and <a href="https://www.courtlistener.com/opinion/152446/howmet-corp-v-epa/" target="_blank">dumping hazardous waste</a>. He ruled that it's okay for <a href="https://www.courtlistener.com/opinion/186989/association-of-irritated-residents-v-epa/" target="_blank">factory farms</a> to foul the air of their neighbors.</p><p>When the Trump administration sought to delay rules designed to reduce climate-changing emissions of methane, Kavanaugh <a href="http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2017/20170731_docket-17-1145_order.pdf" target="_blank">sided</a> with polluters. When the EPA sought to replace fluorinated chemicals known as HFCs to reduce greenhouse gas emissions, he <a href="https://scholar.google.com/scholar_case?case=8064299997792202223&q=Mexichem&hl=en&as_sdt=6,50" target="_blank">complained</a> that the proposed rule pulled the rug out from under polluters—even though replacement chemicals are <a href="https://www.nrdc.org/experts/lissa-lynch/hfc-phasedown-good-climate-and-good-business" target="_blank">readily available</a>. Kavanaugh also <a href="https://scholar.google.com/scholar_case?case=13950613554712833197" target="_blank">supported</a> giving large plants and factories more time to comply with greenhouse gas rules.</p><p>In some cases, Kavanaugh has adopted the view that the EPA must always weigh the costs to polluters against the benefits to public health, regardless of Congressional direction. When the EPA was proposing to regulate mercury emissions, Kavanaugh <a href="https://scholar.google.com/scholar_case?case=12809509887889779783&q=748+F.3d+1222&hl=en&as_sdt=4,130" target="_blank">argued</a> that the EPA was obligated to consider the costs of regulatory compliance to polluters.</p><p>Likewise, when the EPA proposed to apportion cross-state pollution, Kavanaugh <a href="https://scholar.google.com/scholar_case?case=17833444888230748743&q=696+F.3d+7&hl=en&as_sdt=4,130" target="_blank">sided</a> with industry by advocating for the regulation that is least costly to industry, not most protective of public health.</p><p>In another <a href="https://scholar.google.com/scholar_case?case=18109074323810897431&q=mingo+logan+coal&hl=en&as_sdt=6,50" target="_blank">case</a>, Kavanaugh argued that the EPA had failed to consider the costs to a coal company dumping mine waste into streams, even though the agency had no obligation to consider cost. In one <a href="https://www.afj.org/wp-content/uploads/2018/06/White-Stallion-Energy-Ctr._-LLC-v.-EPA_-748-F.3d-1222.pdf" target="_blank">case</a>, Kavanaugh sought to underestimate the public health benefits of reducing mercury pollution by discounting other benefits, like reducing particulate matter.</p>
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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.
<p>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 <a href="http://www.ecowatch.com/tag/climate-change" target="_self">climate change</a>, but has ruled against the Environmental Protection Agency's (<a href="http://www.ecowatch.com/tag/epa" target="_self">EPA</a>) attempts to do anything about it. </p><p>"Judge Kavanaugh isn't anti-environmental, but he tends to be anti-agency," Michael Gerrard told <a href="https://insideclimatenews.org/news/10072018/brett-kavanaugh-supreme-court-trump-nominee-climate-change-policy-environmental-law" target="_blank">Inside Climate News</a>. Gerrard is the director of the <a href="http://columbiaclimatelaw.com/" target="_blank">Sabin Center for Climate Change Law</a> at Columbia University. "He's often struck down regulation that he didn't think Congress had authorized explicitly enough." </p><p>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.</p><p>"The task of dealing with global warming is urgent and important," he wrote, according to <a href="https://www.nytimes.com/2018/07/10/climate/kavanaugh-environment-supreme-court.html" target="_blank">The New York Times</a>. But, despite that, he ruled the "EPA went well beyond what Congress authorized." </p><p>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 <a href="https://www.ecowatch.com/kennedy-supreme-court-environmental-laws-2582036709.html" target="_self">key swing vote</a> on the issue. </p><p>In <em>Massachusetts v. EPA</em>, 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.</p><p>Kavanaugh's strict adherence to the letter of Congressional laws suggests to legal scholars he would have ruled differently. </p><p>"I think he would have decided against <em>Massachusetts v. EPA,</em>" University of California Los Angeles environmental law professor Ann Carlson told <a href="https://www.theatlantic.com/science/archive/2018/07/what-would-kavanaugh-mean-for-the-environment/564830/" target="_blank">The Atlantic</a>. "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." </p><p>Kavanaugh decided against the EPA in three major cases involving the Clean Air Act during the Obama years, The Atlantic reported.</p><p>In one, <em>E.M.E. Homer City Generation v. Environmental Protection Agency</em>, he struck down the EPA's ability to regulate <a href="http://www.ecowatch.com/tag/air-pollution" target="_self">air pollution</a> 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.</p><p>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. </p><p>In 2014, he also decided in favor of the <a href="https://www.nrdc.org/" target="_blank">Natural Resources Defense Council</a> in a case challenging pro-industry policies for emissions from cement kilns, The New York Times reported. </p><p>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. </p><p>"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. </p><p>However, Kavanaugh's approach could also stymie the Trump EPA's attempts to deregulate independent of Congress. </p><p>"If he faces some <a href="http://www.ecowatch.com/tag/scott-pruitt" target="_blank">Scott Pruitt</a>-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."</p>
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The Supreme Court of the United States on Monday morning July 09, 2018. Matt McClain / The Washington Post via Getty Images
By Courtney Hight
Donald Trump announced that he will be nominating another extremist judge to the Supreme Court—Brett Kavanaugh. If the Senate lets Trump successfully install Kavanaugh to fill this seat, the Court will rubber stamp Trump's agenda for decades to come—no longer functioning as a check against his abuses of power and attacks on women's rights and bedrock clean air and clean water laws, which is needed now more than ever.
<p>As members for life of the highest court in the country, Supreme Court justices have the solemn responsibility to be fair, even-handed, and uphold the sanctity of our laws and the values of our Constitution, and to keep faith with the letter and spirit of the nation's core public health, environmental, civil rights, and labor laws.</p><p>The Supreme Court must protect the rights of women, workers, the LGBTQ community, immigrants, people of color and other vulnerable communities. The Court must protect access to healthcare for millions, secure clean air and clean water for all, ensure legally-mandated action to tackle the <a href="http://www.ecowatch.com/tag/climate-change">climate</a> crisis, uphold the right to vote, and safeguard the very strength of our democracy. All of those things could be threatened if a justice is confirmed who sides with the rich and powerful over the people.</p><p>Hand-picked by the Heritage Foundation and Federalist Society, Brett Kavanaugh is not a moderate pick nor will he challenge Trump—he is exactly the type of judicial extremist Trump wants to help him roll back our progress, gut Roe v. Wade, strip individuals of their voting rights, attack equality under the law, gut our environmental laws and repeal affordable healthcare.</p><p>While on the DC Circuit Court, Kavanaugh routinely sided with polluters, criticized the Clean Power Plan, argued against aspects of the mercury rule, and attempted to strike down the EPA's Cross-State Air Pollution Rule.</p><p>But we aren't going to stand by while Trump tries to turn back the clock on our rights. We've proven that our resistance is sustainable, and we will continue to fight back. Together, we will continue to rise up with our allies across the country to ensure that our courts remain fair and uphold democracy. And there are lots of things you can do right now to respond to Trump and keep up the #resistance. Here are just six:</p><p><strong>1. Call your U.S. Senators</strong>. Urge them to stop Trump's nominee in their tracks. Call them at 218-209-4082.</p><p><strong>2. Tweet and post on Facebook</strong>. We all know Trump loves to tweet. Let's make sure he hears our resistance by using the hashtags #SaveSCOTUS and #StopKavanaugh. Same with Facebook. Let's get #SaveSCOTUS and #StopKavanaugh trending so Trump and his advisors know just how big a mistake they're making.</p><p><strong>3. Find a #saveSCOTUS event near you</strong>. Dozens of organizations are coming together for a Supreme Court week of action this week. We'll be heading to the home state offices of our Senators to make sure our voices are heard. Find an event near you or create your own: <a href="https://savescotus.indivisible.org/sierraclub/" target="_blank">https://savescotus.indivisible.org/sierraclub/</a></p><p><strong>4. Join the #Resist Summer Challenge</strong>. It may be summertime, but our movement to Resist Trump will not take a vacation. As we face increasing attacks on our people and our environment from this administration, we must recommit ourselves to resisting Trump and everything he stands for. Join us at <a href="http://sc.org/ResistSummerChallenge" target="_blank">sc.org/ResistSummerChallenge</a>.</p><p><strong>5. Help us fight back against the Trump administration</strong>. We're fighting back to stop the efforts of Trump and his nominees to derail everything we've achieved. Your support will help the Sierra Club protect <a href="http://www.ecowatch.com/tag/wildlife">wildlife</a>, wild places and fragile ecosystems, reduce dependence on <a href="https://www.ecowatch.com/tag/fossil-fuels">fossil fuels</a>, and build a <a href="http://www.ecowatch.com/renewable-energy/">clean energy</a> future. Raise your voice with us. <a href="https://act.sierraclub.org/donate/rc_connect__campaign_designform?id=7010Z000002AzxiQAC&formcampaignid=701310000008mUjAAI&utm_medium=blog&utm_source=sierraclub&utm_campaign=giving&ddi=N18GOTF201" target="_blank">Donate today so we can continue to resist</a>.</p><p><strong>6. Add your name and commit to fighting for nominees who uphold the Constitution. </strong>Keep faith with the letter and spirit of the nation's core laws, and support justice for all Americans. Together with you, the Sierra Club is committed to rising up with our allies across the country to ensure that our courts remain fair and uphold democracy. <a href="https://act.sierraclub.org/actions/National?actionId=AR0118862&id=7010Z000001OjWTQA0" target="_blank">Join us here.</a></p>
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</p><div id="d2d9a" class="rm-shortcode" data-rm-shortcode-id="UQBV0U1576662854"><blockquote class="twitter-tweet twitter-custom-tweet" data-twitter-tweet-id="1012317415546507265" data-partner="rebelmouse"><div style="margin:1em 0">The Environmental Consequences of Justice Kennedy’s Retirement https://t.co/rJ5qBr0ttz</div> — EcoWatch (@EcoWatch)<a href="https://twitter.com/EcoWatch/statuses/1012317415546507265">1530190254.0</a></blockquote></div>
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<p><em>Courtney Hight is the director of Sierra Club's democracy program.</em><br></p>
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