The law is magic, and perhaps nowhere is this more obvious than in environmental law. Through the consent of the people and the government’s monopoly on violence, the mere words of American environmental law have reshaped matter, exerted mastery over nature, and granted an incredible gift—extra years of healthy life—to unknown and unknowing souls. In the past half century, these laws have doused the fires of the Cuyahoga, vanished the smogs of the San Fernando Valley, and prevented lead from destroying the brains of New York’s children. Individual statutes are no less miraculous: By the government’s own accounting, the 1990 Clean Air Act has prevented 160,000 American adults from dying before their time.
On Saturday, the United States received a new arbiter of those laws, as the Senate confirmed Judge Brett Kavanaugh as the 114th justice of the Supreme Court. His appointment will likely rank as President Donald Trump’s most effective, longest-lasting, and most profound contribution to environmental law—which is no small feat, as the president has spent most of his time in office trying to dismantle the entire edifice.
Any justice Trump chose to take over from Justice Anthony Kennedy—or any justice who disturbed the court’s center-right lean—would wield tremendous power over the EPA and its companion agencies. On environmental questions, as on much else, Kennedy held the swing vote: The Court only ruled on one environmental case during Kennedy’s three-decade tenure, in which he did not vote in the majority. Earlier this decade, when Obama-era EPA lawyers wrote new rules about water pollution, they borrowed ideas directly from Kennedy’s jurisprudence, for they knew they would eventually have to win him over in argument.