Brett Kavanaugh an Environmental Justice?

For progressives, Democrats, and even some Republicans, the horrors of a Trump presidency are cloaked in judicial robes.

​While cheered by Republicans, Kennedy’s retirement is mourned by environmentalists and many Democrats. Kennedy, like Sutor, voted with his liberal High Court colleagues in several landmark cases including Planned Parenthood v Casey which upheld Roe v Wade. Kennedy has also defended affirmative action, same-sex marriage, and abortion rights.

The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.

The Supreme Court cases that have dealt with EPA’s efforts to address climate change have taught us two lessons that are worth repeating here. First, EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate. The agency must have statutory authority for the regulations it wants to issue.

Second, Congress’s failure to enact general climate change legislation does not authorize EPA to act. Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change.

Kavanaugh’s rulings have not been entirely anti-environment. However, even when upholding a regulation, he is quick to evidence his strict constructionist nature by indicating the approved action is within the strictures of the legislation and the Constitution.

Congress could well decide to alter the statute to permit or require EPA’s preferred approach to the good neighbor issue. Unless and until Congress does so, we must apply and enforce the statute as it’s now written. Our decision today should not be interpreted as a comment on the wisdom or policy merits of EPA’s Transport Rule. It is not our job to set environmental policy. Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here.

The Chevron deference has allowed Congress to paint its environmental goals in broad terms while leaving to the EPA the task of determining how best to achieve Congressional goals and objectives.

In the absence of any precedents, the Supreme Court’s new conservative majority would undoubtedly reverse the original Massachusetts decision along the lines of Justice Scalia’s dissenting opinion in the case or on purely textualist grounds. There are, of course, precedents for the Justice Kavanaugh and his conservative colleagues to consider in rendering almost any judgment. The big question is — will they?

There are good reasons to believe that the legal under-pinnings of the nation’s environmental regulations won’t be kicked out by Trump textualists. The Massachusetts decision, for example, has survived several subsequent legal challenges and is considered by many to be settled law.

Precedent poses a notoriously difficult problem for originalists. Some decisions thought inconsistent with the Constitution’s original public meaning are so well baked into government that reversing them would wreak havoc. Adherence to originalism arguably requires… the dismant-ling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education.

Stronberg is a senior executive and attorney with over 40 years of experience in federal and state energy, environmental and sustainability issues.

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