Justice Kennedy's Retirement Portends Hard Times For Environmental Law

The retirement of Justice Kennedy, who cast the decisive vote in more environmental cases than any other justice, will have profound implications for the Supreme Court's future environmental jurisprudence. In 2007, Justice Kennedy cast the decisive vote in the Court’s landmark Massachusetts v. EPA decision. In that case, the Court by a 5-4 vote held that EPA has the authority to regulate emissions of greenhouse gases (GHGs) under the Clean Air Act and that states have standing to challenge EPA’s failure to do so. With Kennedy off the Court, it is possible that the Court in the future will overrule this decision, which served as the legal basis for the Obama administration’s efforts to regulate GHG emissions. In subsequent cases, Justices Thomas and Alito have called for Massachusetts v. EPA to be reconsidered. D.C. Circuit Judge Brett Kavanaugh, who has been nominated by President Trump to succeed Justice Kennedy, has expressed similar views.

Kennedy also has played a decisive role in the Supreme Court’s regulatory takings jurisprudence. Kennedy voted with the majority in all ten regulatory takings cases the Court has decided during his time on the bench. His vote was decisive in the six of these cases that were closely split. Because Kennedy usually sided with property owners, his replacement is unlikely to change substantially the Court’s takings jurisprudence. However, one case that may come out differently in the future is the Court’s 2017 decision in Murr v. Wisconsin where Kennedy authored the majority opinion in a 5-4 decision rejecting a landowner’s claim that it should be compensated by government if land use regulation did not permit it to build on both of two small, adjacent lots on a steep hillside overlooking a scenic river. Kennedy also refused to provide a fifth vote for the radical proposition that state court judges could be held liable for “judicial takings” if they ruled against property owners.

Just prior to his sudden death in January 2016, Justice Antonin Scalia had become such an automatic vote against EPA that he criticized the agency for an argument it never made in a previous case where he had authored the Court’s majority opinion. This gaffe was so embarrassing that Scalia was forced to amend his opinion just days after it was issued. Unfortunately, Judge Kavanaugh shows every sign that he embraces Scalia’s anti-EPA posture. In several cases he has proposed inventive new interpretations of environmental statutes to justify a conclusion that EPA acted illegally. 

In the most egregious of these cases Kavanaugh voted to invalidate EPA regulations to control transboundary air pollution. These regulations would prevent tens of thousands of premature deaths each year, generating hundreds of billions in annual benefits at a cost of only $2.4 billion. Kavanaugh’s decision was sharply criticized by a prominent business journalist as the product of “a new breed of activist judges waging a determined and largely successful war on federal regulatory agencies” through the use of “legal sophistry, procedural hair-splitting and scientific conjecture.” Steven Pearlstein, The Judicial Jihad Against the Regulatory State, Washington Post, Oct. 13, 2012. The decision was too much for even Justice Kennedy and Chief Justice Roberts to stomach and they joined a Supreme Court decision (EPA v. EME Homer City Generation, L.P.), reversing it by a 6-2 vote with only Justices Scalia and Thomas dissenting.

Despite purporting to be a textualist, Judge Kavanaugh has interpreted provisions in the Clean Air and Clean Water Acts that do not mention costs to require EPA to base its decisions on cost considerations. This led him to invalidate EPA’s first regulations to control toxic mercury emissions from power plants. Even after agreeing that EPA has the legal authority to revoke a permit allowing mountaintop mining waste to be used to bury streams, Kavanaugh dissented because he concluded that EPA should pay more attention to coal industry jobs and profits not mentioned in the law.

Two years ago Republican leaders of the U.S. Senate refused even to give a hearing to moderate Judge Merrick Garland, who had been nominated by President Obama to Justice Scalia’s seat on the Supreme Court. This cynical political ploy, coupled with the abolition of the filibuster for Supreme Court confirmations on a straight party-line vote, has severely damaged the rule of law in the U.S. by making our highest court appear to be a nakedly political institution. This error will only be exacerbated if the U.S. Senate confirms Judge Kavanaugh’s nomination, which will make it far more difficult for EPA to perform its legal duty to protect human health and the environment for decades to come.