Justice Kavanaugh, Environmental Swing Vote
Why Thursday’s opinion on the Clean Water Act was not entirely out of character for the justice
On Thursday, the Supreme Court sharply limited the Environmental Protection Agency’s ability to protect wetlands under the Clean Water Act. Writing for a five-justice majority, Justice Samuel Alito said that only wetlands with a “continuous surface connection” to a protected body of water were covered by the law. The decision will remove federal protections from millions of acres of swamp, bog, and marsh, allowing companies to dump pollutants into them without penalty or oversight.
The ruling is arguably a more severe rollback to the EPA’s power than last year’s West Virginia v. EPA, which partially curtailed the agency’s authority under the Clean Air Act. In that case, the Court prevented the EPA from regulating carbon pollution in one hypothetical way, but did not prevent it from attempting to regulate emissions at all. Now the Court is lifting wetland protections that have been in place for decades.
Four justices, including the Court’s three liberals, decried the decision. “By narrowing the Act’s coverage of wetlands,” one of them wrote, “the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
Yet the identity of the justice who wrote that sentence may come as a surprise: It was Justice Brett Kavanaugh, a conservative whom President Donald Trump appointed to the Court in 2018. In what was essentially a dissent, Kavanaugh called the Court’s ruling “atextual,” warning it will “create real-world consequences for the waters of the United States.” The case could prevent the government from protecting the Chesapeake Bay or Mississippi River, he said.
The ruling was Kavanaugh’s highest-profile disagreement in an environmental case. (Technically, his dissent was filed as concurrence because all nine justices ruled against the EPA on the limited facts of the case.) And it attracted some notice, given that Kavanaugh, along with Justice Neil Gorsuch and Chief Justice John Roberts, now provide the closest thing that the right-wing Court has to a swing vote. Environmentalists and progressives noted Kavanaugh’s dissent with surprise.
Yet it was not entirely out of character for the justice. Before he was nominated to the Supreme Court, Kavanaugh was seen as a skeptic, but not an enemy, of environmental regulation. Because he previously sat on the Court of Appeals for the District of Columbia, which often hears EPA cases, Kavanaugh had a deeper record on environmental law than most other jurists who join the court.
“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,” Richard Lazarus, a Harvard Law professor, told me in 2018 after Kavanaugh was first nominated. “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.”
That appears to be what he did in Thursday’s case. He criticized the five-justice majority for “relitigating an issue that Congress settled in 1977,” arguing that lawmakers had always intended for the Clean Water Act to cover wetlands close to, but not directly connected to, protected lakes, streams, and rivers. The Court’s “overly narrow view of the Clean Water Act,” he warned, “will have concrete impact.”
Kavanaugh also sits apart from some of his conservative colleagues for affirming the science of climate change in broad terms. “The earth is warming. Humans are contributing,” he volunteered while hearing a major EPA climate case in 2016. “There is a moral imperative. There is a huge policy imperative,” he continued. “The pope’s involved.” He did not say — crucially — whether he believed that the EPA also had the legal authority to act, although he later ruled against the agency in a similar case.
Yet Justice Amy Coney Barrett, by comparison, has declined to affirm the existence of climate change. During Barrett’s confirmation hearing in 2020, Kamala Harris, then a senator and vice-presidential candidate, asked whether smoking causes cancer and COVID-19 is contagious. Yes, they were, Barrett affirmed, but asked what Harris was driving at.
Then Harris asked: “Do you believe that climate change is happening and threatening the air we breathe and the water that we drink?”
“Again, I wondered where you were going with that,” Barrett replied. “You asked me uncontroversial questions, like COVID-19 being infectious or if smoking causes cancer, and you’re trying to solicit to an opinion from me on a very contentious matter of public debate and I will not do that. I will not express a view on a matter of public policy, especially one that is politically controversial because it is inconsistent with the judicial rule, as I explained.”
Aside from the notable failure to affirm even the scientific existence of climate change, Barrett is incorrect. The open political question about climate change is what, if anything, to do about it — not whether it exists. In the next year, Barrett and her eight colleagues — including Kavanaugh — will get to participate in that debate when she rules on a series of major EPA climate proposals. I suppose we shall learn more about her views — and his — then.