Abrams Environmental Law Clinic Publishes Review of Judge Brett Kavanaugh’s Environmental Jurisprudence

The Abrams Environmental Law Clinic has published a report titled "A Review of Judge Brett Kavanaugh’s Environmental Jurisprudence." The primary authors are Kevin Carlson, ’19, and Ben Segal, ’19, and the primary editors are Clinical Professor of Law and Clinic Director Mark Templeton and Clinical Instructor Robert Weinstock, with research assistance by Rebecca Barker, ’20, Maia Dunlap, ’20, Leah Garner, ’19, James Herrigel, and Kevin Kennedy, ’19.

The executive summary is reproduced below. Download the full report here (PDF).

Judge Brett Kavanaugh’s record in environmental and related cases should raise serious questions as the U.S. Senate considers his nomination to the U.S. Supreme Court. As a judge on the U.S. Circuit Court of Appeals for the District of Columbia, he has ruled consistently against environmental protections and federal regulation in general, even when reaching such positions requires him to apply the kinds of reasoning he has criticized in other instances. Far from demonstrating a consistent textualist or originalist approach, Judge Kavanaugh’s record is anti-regulatory, even when those regulations protect vital interests such as public health, the environment, and workers’ rights. Illustrative of his anti-regulatory predisposition is the fact that, in more than a decade on the bench, though he dissented frequently, he never once dissented in favor of a more environmentally protective outcome.

Our review of Judge Kavanaugh’s jurisprudence raises several serious questions around issues relevant to environmental law and policy, which is the focus of the Abrams Environmental Law Clinic at the University of Chicago Law School. Our report groups these issues into three categories:

  1. Access to the Courts—In his opinions, Judge Kavanaugh has limited the access of non-profit organizations and injured individuals, while supporting expanding access of corporations seeking to challenge regulations.
  2. Deference to Agencies—With regard to agency expertise in administrative law, Judge Kavanaugh has inconsistently applied judicial rules related to deferring to agencies, disregarding such rules when agency positions are protective of the environment and invoking deference when reviewing anti-environmental regulatory decisions. When interpreting statutes, Judge Kavanaugh’s record appears not to be that of a consistent “textualist,” but rather that of an instrumentalist, meaning that he appears to deploy reasoning to reach particular, substantive outcomes.
  3. Benefits of Regulation—While Judge Kavanaugh has espoused passionate concern for the costs of regulation, he deploys a selective approach to recognizing benefits and co-benefits in order to support restricting or removing regulations even when they are demonstrably beneficial and efficient.

Judge Kavanaugh’s record strongly suggests that a Justice Kavanaugh would rule consistently against federal environmental and public health protections, with little consideration, if any, for their legal and scientific bases. As a result, industry would be able to shift costs to individual members of society and society as a whole that industry efficiently and rightfully should bear.

In addition to the potential negative impacts on the environment and public health, such an outcome is likely to increase regulatory uncertainty and to produce a balkanized regulatory landscape with some states and localities supplying their own more protective standards in the absence of federal regulation. While some entities in particularly dirty industries may benefit in the short term from Judge Kavanaugh’s anti-regulatory approach, regulatory uncertainty and litigation costs may impose more cost on industry in the end.

The most consistent themes in Judge Kavanaugh’s decisions and dissents are reliable support for polluters, regular opposition to victims of environmental and industrial harm, and an embrace of ideas that could unsettle decades of established law. For those reasons, we have strong and deep reservations about the U.S. Senate confirming Judge Kavanaugh to the position of Associate Justice of the U.S. Supreme Court.

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