December 27, 2018

Our new pro-liberty justice—and what that means for environmental law

Alice Kaswan

Of course, only time will give us the final word on Justice Kavanaugh’s Supreme Court jurisprudence. Nonetheless, with 12 years on the U.S. Court of Appeals for the D.C. Circuit, we have quite a few markers of his judicial philosophy and its application to environmental law. 

A guiding theme in Justice Kavanaugh’s decisions is his concern for individual liberty, with liberty understood as liberty from government control. The concern for individual liberty has separation-of-powers implications: Justice Kavanaugh keeps a sharp eye out for agency overreach—for agency actions not explicitly authorized by Congress. More broadly, in cases challenging environmental laws and regulations, he appears to keep a watchful eye on agencies’ attempts to control corporate or individual behavior.

In this short essay, I will discuss Justice Kavanaugh’s efforts to constrain agency action to preserve individual liberty in two contexts. The first is the Justice’s tendency to construe statutes strictly and narrowly—and the implications of that approach for deference to agencies. The second context is his tendency, in some tension with his otherwise strict constructionist approach, to inject cost or cost-benefit considerations into statutory schemes.

Strict construction: a couple of examples

Since his nomination, much has been written about Justice Kavanaugh’s strict adherence to statutory language. His opinion in E.M.E. Homer v. EPA, 696 F.3d 7 (D.C. Cir. 2012), is illustrative. Then-Judge Kavanaugh’s opinion struck down the Environmental Protection Agency’s (EPA’s) Cross-State Air Pollution Rule, designed to implement the Clean Air Act’s “good neighbor” provision, which provides that upwind states must not emit pollutants in “amounts which will . . . contribute significantly to nonattainment” in downwind states. He ruled that EPA must apply the language literally to determine upwind state obligations, and that EPA’s complex and policy-driven mechanisms for determining each state’s emission reduction obligations were not authorized by the statute.

Similarly, in Mexichem Fluor v. EPA, 866 F.3d 451 (D.C. Cir. 2017), Judge Kavanaugh narrowly construed the Clean Air Act’s provisions on replacing ozone-depleting substances (ODSs) with more environmentally sound alternatives. Early on, EPA had allowed manufacturers to replace ODSs with hydroflourocarbons (HFCs). Over time, however, the agency recognized that HFCs are potent greenhouse gases and required manufacturers to substitute HFCs with a less harmful ODS replacement. Judge Kavanaugh ruled that the agency cannot replace the replacement. He concluded that the Clean Air Act did not permit EPA to limit the use of HFCs because the statute authorized EPA to replace only ODSs, not their replacements, even if the replacements proved to be harmful.

Strict construction: implications for “statutory purpose” analysis

In focusing tightly on explicit language in specific provisions, Justice Kavanaugh pays less attention to the pragmatic challenges agencies face in fulfilling a statute’s overarching purpose. So, in EME Homer, adjudicating the Cross-State Air Pollution Rule, he argued that EPA must base its requirements only on each state’s specific contribution to downwind states’ nonattainment, without addressing the practical challenge EPA faced in determining each state’s contribution. Notably, recognizing the practical challenge and the need for flexibility to address interstate air pollution, the Supreme Court reversed Judge Kavanaugh’s decision.

And in Mexichem Fluor, Judge Kavanaugh focused only on the plain meaning of the word “replace.” He did not address the purpose of the replacement provisions, which were designed to ensure that replacements for ODSs were not themselves harmful to the environment.

Justice Kavanaugh’s view appears to be that if statutory language does not perfectly match the agency’s regulatory challenge, it is not for the agency to interpret its authority broadly to meet statutory goals. To avoid unauthorized agency overreach that violates the separation of powers and restricts individual liberty, it is up to Congress to revise statutes that fail to adequately address existing challenges.

Strict construction and deference

How will Justice Kavanaugh’s approach to statutory construction intersect with principles of deference to agency action—particularly the Chevron doctrine? Given his strongly expressed respect for judicial precedent, Justice Kavanaugh is unlikely to overturn Chevron directly.

However, given his concern about agency overreach, Justice Kavanaugh is likely to find ways to scrutinize and potentially invalidate agency action notwithstanding the Chevron doctrine. Under step one, he could well find that an agency regulation is inconsistent with what he considers to be unambiguous statutory text. Or, if the statute is ambiguous, his suspicion of agency overreach could lead him to conclude, under step two of Chevron, that the agency’s interpretation is unreasonable.

Lastly, Justice Kavanaugh has articulated a “major rules” doctrine that is a variant on King v. Burwell’s “major questions” doctrine. While the major questions doctrine suggests that courts need not defer to agencies concerning matters of considerable economic and political import, Justice Kavanaugh has gone a step further, suggesting not only that courts need not defer, but that, for “major rules,” agencies lack the authority to act absent explicit congressional authorization. Thus, under the major rules doctrine, Justice Kavanaugh would not simply forego deference for major actions predicated on ambiguous language, he would invalidate them.

Deference and Obama-era actions

If, and when, Obama-era regulatory initiatives come before the Supreme Court, Justice Kavanaugh is likely to cast a skeptical eye on the agency’s efforts to make our dated environmental statutes fit the reality of current environmental challenges. An initiative such as the Clean Power Plan, which created a complex and far-reaching program for regulating existing power plants under the Clean Air Act, is likely to be considered agency overreach because it innovates beyond the spare words of section 111(d). Similarly, if the Obama-era Clean Water Rule comes before the Court, Justice Kavanaugh is likely to construe the Clean Water Act’s inherently ambiguous jurisdiction narrowly and without considering the statute’s overarching goals.

Deference and Trump administration actions

Does this mean that Trump administration initiatives would also face intense and potentially nullifying scrutiny? Justice Kavanaugh would likely remand Trump administration initiatives if the administration ignored required procedures or explicit statutory language. However, assuming compliance with procedure and explicit statutory terms, he is likely to uphold the Trump administration’s environmental initiatives because the administration appears to share his interest in construing statutory authority narrowly, as evidenced in its proposed and anticipated replacements for the Clean Power Plan and Clean Water Rule.

Not so strict construction: the role of costs in agency decision-making

Justice Kavanaugh’s concern about the scope of agency power and its impacts on individual liberty—its impacts on the regulated sector—is also evident in his rulings on the role of cost considerations in environmental decision-making. Although Justice Kavanaugh tends to construe agency authority narrowly and strictly when confronted with far-reaching regulatory initiatives, he has found that agencies have a duty to consider costs even in the absence of explicit statutory language.

White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222 (D.C. Cir. 2014), addressed the Clean Air Act provision conditioning power plant toxics controls on whether they were “appropriate and necessary.” Although the provision appeared to focus on whether power plants continued to present public health concerns, Judge Kavanaugh’s dissent argued that the term “appropriate” inherently required the agency to consider regulatory costs, a view ultimately validated by the Supreme Court in Michigan v. EPA.

Judge Kavanaugh made a parallel argument in his dissenting opinion in Mingo Logan Coal Co. v. EPA, 829 F.3d 710 (D.C. Cir. 2016). Mingo Logan involved the role of costs in EPA decisions to revoke a stream fill permit for mining waste disposal. The Clean Water Act allows EPA to revoke a permit when EPA identifies an “unacceptable adverse effect” on the environment. Judge Kavanaugh argued that EPA was required to balance environmental benefits with industry costs, even though the statutory language referred only to the permit’s environmental, not its economic, implications. Judge Kavanaugh suggested that reasoned decision-making always requires consideration of costs, following Michigan v. EPA’s affirmance of his argument for considering costs in the Clean Air Act context. He thus appeared to reject, implicitly, the notion that Congress could require agencies to make some decisions turn on environmental impacts alone.

Conclusion

Overall, although Justice Kavanaugh has suggested that he is not “anti-regulatory,” his concern about individual liberty, and associated concerns about agency overreach and the impacts of government on the regulated sector, suggest that he is likely to keep agencies on a short leash. As a consequence, agency efforts to achieve statutory purposes by making do with ambiguous or outmoded statutory provisions are unlikely to meet with Justice Kavanaugh’s approval.

Alice Kaswan

Alice Kaswan is a professor at the University of San Francisco School of Law. She writes about climate change policy, federalism, and environmental justice.