07/11/2018 - EELP News

Environmental & Energy Law Program Weighs In on Kennedy and Kavanaugh

by Jody Freeman, Joe Goffman, Richard Lazarus

We have thoughts on Supreme Court Justice Kennedy’s retirement and the nomination of Kavanaugh to replace him. Professors Jody Freeman and Richard Lazarus, and Executive Director Joe Goffman have all gone on record recently to discuss the potential impact of this move by Kennedy and the Trump Administration.

Jody Freeman

“Kavanaugh has had ample opportunity to promulgate his judicial philosophy. ‘His record is longer because the DC Circuit hears relatively more cases involving challenges to agency regulatory actions.'” – Washington Post, July 11, 2018

“I think for all of these rulemakings his judicial philosophy and his temperament is to be skeptical of important, big, far-reaching agency rules, especially if they are interpreting or adapting older stuff in novel ways.” – Utility Dive, July 11, 2018

“Kavanaugh is temperamentally and philosophically skeptical about the exercise of government power, especially when agencies act expansively, and find new powers in longstanding laws. He is a ‘by the book’ judge on procedural regularity, meaning he won’t let agencies get away with taking short cuts… So if the next few years bring careless and sloppy deregulation without a sufficient record and against the weight of the evidence, I don’t think the Trump administration should count on his vote.” – Washington Examiner, July 11, 2018

“It’s likely Kavanaugh would operate in the manner of Chief Justice John Roberts, working incrementally in a way that limits regulation and keeps agencies in check but doesn’t target court precedent.” – Bloomberg Law, July 11, 2018

“Of the judges who made Trump’s shortlist, Kavanaugh was viewed as the most troublesome for environmentalists, said Jody Freeman, the founding director of Harvard’s Environmental and Energy Law Program. That reputation might be overblown, she said. ‘You can’t say that you always know the outcome with Brett Kavanaugh,’ Freeman said. ‘He’s a very serious and very diligent judge, and he’s shown himself to be persuadable.'” – E&E News, July 10, 2018 (picked up by Scientific American)

“I think the Supreme Court without Justice Kennedy will be even more likely to look skeptically at [greenhouse gas] regulation, and be more open to efforts to cabin it, if another administration ever returns to it. And a new, more conservative Justice in the mold of a Justice Gorsuch might be more deferential to the anti-regulatory impulses of the current administration.” – Axios Generate, June 28, 2018

Richard Lazarus

“Kavanaugh has insisted on upholding the expansion of regulatory authority only when there is clear evidence Congress intended to do so. ‘It is a perfectly legitimate neutral principle for interpreting federal statutory authority. But as applied to EPA, it had led Kavanaugh repeatedly and consistently to rule against EPA.'” – Washington Post, July 11, 2018

“It’s a neutral principle, although the effect isn’t always neutral. Congress stopped making clean air laws after 1990, so the E.P.A. has to work with increasingly tenuous statutory language. In effect, his (Kavanaugh’s) approach to environmental law would make it harder to address current problems so long as Congress remains out of the lawmaking business.” – New York Times, July 10, 2018

“Would a Supreme Court with another conservative justice on bench take a whack at Massachusetts v. EPA? It’s unlikely, according to Richard Lazarus, an environmental law professor at Harvard Law School who has argued cases before the Supreme Court. ‘I think on that question, the odds are very, very small….’ According to Lazarus, the court doesn’t typically revisit past cases unless there is a major constitutional question in play. The debate around the Massachusetts v. EPA decision centers on interpreting the language of the Clean Air Act (not a major constitutional question).” – Vox, June 29, 2018

“In Rapanos, Kennedy declared that the Clean Water Act covers any wetlands or small waterways with a “significant nexus” to larger waters downstream, meaning chemical, biological or hydrological connections…’They are not going to feel bound one way or another by what was said in Rapanos because there was no majority opinion. The lower courts are bound by it, but the Supreme Court will see it as an opportunity to clarify what the standard is in a 5-4 ruling.'” – E&E News, June 28, 2018

“He’s been on the court just over 30 years, and he’s been in the majority in every single environmental case but one. You don’t win without Kennedy.” – The Atlantic, June 27, 2018

Joe Goffman

“Although he takes as craftsmanlike and non-controversial an approach as available, he is often willing to put blinders on to support his interpretations.” – Inside Climate News, July 11, 2018

“In 2016, Kavanaugh noted, ‘The Earth is warming. Humans are contributing.’ He called a law intended to address climate change ‘laudable,’ but also suggested that this was best left to Congress to sort out, rather than the courts. And in past cases over the last decade, Kavanaugh has argued that climate and environmental regulation is a legal overreach — ‘even where science and emerging new information might be on the side of taking more environmental action.’” – Buzzfeed, July 9, 2018

“One area legal experts are split on is whether the 2007 decision that greenhouse gases are pollutants will be reconsidered. ‘There’s a been a lot of focus on whether that case will be reversed by a new majority,’ Joseph Goffman, executive director of Harvard’s Environmental Law Program, told BuzzFeed News. While he doesn’t dismiss this possibility out of hand, he’s more concerned by the court incrementally chipping away at the government’s authority to regulate climate pollution in other ways.” – Buzzfeed, June 29, 2018