Kavanaugh is particularly skeptical of new EPA programs. Like Scalia, he argues that the agency should only issue a new rule if Congress granted them explicit, precise rules to do so in a piece of legislation, like the Clean Air Act or the Clean Water Act.
During the Obama administration, Kavanaugh heard three major cases about the EPA’s authority under the Clean Air Act. In every case, he opposed the agency’s position.
“Why did he rule against the EPA in all three cases?” Lazarus asked. “He’s not like a Scalia—or, to some extent, an Alito—where you read their opinions and find there’s an antipathy, a hostility, to environmental law. Scalia is sometimes even sarcastic in his tone.”
“You never see this in Brett Kavanaugh,” he continued. “He is a really decent person, with enormous integrity, and there’s just not that kind of bent with him. But he is a conservative judge and a stickler for the notion of separation of powers. If he’s going to find an agency has sweeping regulatory authority, with significant economic or social implications, he’s going to want to find that Congress really intended it. He’s going to want to see specific language in the statute that says Congress really meant to give that authority away.”
“That is, in the abstract, a perfectly fair and neutral principle. But it does tend, in environmental law, to lead to one answer, which is: No.”
This isn’t necessarily because Kavanaugh loathes the cause of environmental protection, Lazarus told me. Instead, it’s because Congress hasn’t passed a major environmental law since it revamped the Clean Air Act in 1990. “When the EPA is trying to come up with a way of addressing a problem with some really creative and pragmatic solution, it has to use legal language that is 28 years old, in some cases almost 40 years old,” he said.
One of these three Clean Air Act cases provides a good example. It concerned the EPA’s ability to regulate “cross-state air pollution,” that is, pollution from coal-fired power plants in one state that blows downwind into another.
Kavanaugh found that the agency couldn’t regulate that activity under the Clean Air Act. The case was appealed to the Supreme Court—and the justices disagreed. Both Chief Justice Roberts and Justice Kennedy joined the liberals in favor of the EPA, affirming the rule. “They were more willing to read into that [Clean Air Act] language some pragmatic authority for the EPA” than Kavanaugh was, said Lazarus.
In the two other major Clean Air Act cases, the Supreme Court eventually took the same side as Kavanaugh. “He somewhat already appears to be listened to [by the justices] on these issues,” Adler said.
Outside of those major cases, Kavanaugh has often but not always ruled against the agency. In 2013, he voted with the EPA, ruling that the agency was legally permitted to revoke a permit for mountaintop-removal mining. A year later, when a different legal question was argued in the same case, he voted against the agency.