“Kavanaugh’s record on environmental issues is appalling.”(Photo by Alex Wong/Getty Images)
When a literal reading of the law makes it harder to regulate corporations, judges like Kavanaugh stick to a literal reading. When it doesn’t, they get creative.
Donald Trump’s Supreme Court nominee Brett Kavanaugh isn’t just a likely vote against Roe, or an enabler of brash executive authority. He’s also a vocal supporter of a conservative legal “philosophy” that’s designed to block action on climate change.
Kavanaugh’s record on environmental issues is appalling.
As a D.C. appeals court judge, he argued against the EPA’s authority to regulate greenhouse gases, and wrote the majority opinion striking down the EPA’s attempt to regulate hydrofluorocarbons (HFCs), which are potent climate pollutants used in cooling applications. He even wrote a majority opinion overturning EPA regulation of air pollution that crosses state lines.
While focusing on these particulars is important, it’s vital not to lose sight of the underlying pattern.
Kavanaugh says he opposites EPA regulation of greenhouse gases because the literal language of the Clean Air Act doesn’t authorize the EPA to do so. Only a specific mandate from Congress to curb carbon dioxide and other climate pollutants can do that, he claims.
This is very convenient for the fossil fuel industry and other climate polluters, which have the political clout to ensure that such a directive will never happen under the present Congress.
With Congress unwilling to pass legislation curbing greenhouse gases, and courts unwilling to allow regulators to take action on climate change absent such legislation, U.S. inaction on climate becomes a self-fulfilling prophecy.
But why does the fossil fuel industry have such political clout? Part of the answer lies in the same judicial system where Kavanaugh may now rise to the greatest heights.
Kavanaugh’s self-proclaimed literalism with regard to the Clean Air Act and other statutes is an attribute shared by much of the judicial right, most notably by the late Antonin Scalia. But it’s seldom applied consistently.
Notably, the Supreme Court’s expansion of corporate “free speech” rights in recent years, such as the idea that political contributions count as “speech,” clearly aren’t supported by a literal reading of the First Amendment.
It’s precisely judicial decisions such as Citizens United that have opened the floodgates for corporate money, including from fossil fuel interests, to corrupt our political system and prevent congressional action on climate change.
So the courts enable the fossil-fuel industry to bribe members of Congress, who return the favor by blocking congressional action on greenhouse gases. And then the courts say that government agencies cannot regulate greenhouse gases without explicit congressional authorization. The self-fulfilling prophecy comes full circle.
Was the court’s expansion of “corporate free speech” based on a correct legal interpretation? I leave that debate to the lawyers. But you have to see the obvious inconsistency: Courts either have the power to extrapolate creatively from the literal text of the law, or they’re bound by a narrow literal reading of the law. The judicial right wants to have it both ways, and they’ve been getting away with it for years now.
When a literal reading of the law supports the status quo or benefits the rich and powerful, they stick to a literal reading. When it doesn’t, they don’t.
You can call it a legal philosophy. I call it politics. The judiciary is just another arm of government used by powerful corporations to maintain and expand their power. And when it comes to the fossil fuel industry, maintaining and expanding their power comes at a huge cost to humanity.