This week the Los Angeles Times ran a story on Judge Brett Kavanaugh’s record in environmental cases, “Judge Kavanaugh could give conservatives the vote they need to rein in EPA rules on climate change.”
The story noted, correctly, that Judge Kavanaugh has written opinions rejecting attempts by the Environmental Protection Agency to extend its regulatory authority to greenhouse gases where Congress had not given the EPA such authority. On this basis, the story suggested that a Justice Kavanaugh would be hostile to efforts by California to adopt more aggressive pollution-control regulations. Left out of the story, however, is the fact that Judge Kavanaugh has already considered whether California can adopt more stringent air-pollution controls, consistent with the federal Clean Air Act, and ruled in favor of California.
In American Trucking Associations v. EPA, Judge Kavanaugh rejected an industry challenge to California’s adoption of more stringent pollution controls on in-use, non-road engines (such as those used to power truck refrigeration units). Over the dissent of one of his colleagues (Senior Judge Stephen Williams), Judge Kavanaugh concluded the EPA properly concluded that the California rules were allowed under federal law.
The American Trucking decision does not mean that a Justice Kavanaugh would necessarily approve future efforts by California to adopt more stringent controls on greenhouse gases, but it is just as probative of the question as the other cases cited in the LA Times story — a point I made to the reporter when he interviewed me for the story. Yet for some reason, any mention of this decision was left on the cutting-room floor.
Interestingly enough, this profile of Judge Kavanaugh’s record in environmental cases also omits any mention of American Trucking, even though the article purports to focus on cases in which Kavanaugh disagreed with other conservative judges on the D. C. Circuit.