Should environmentalists fear the prospect of Judge Brett Kavanaugh as a Supreme Court justice? Most left-of-center environmentalists are convinced that the answer is yes, on the grounds that Judge Kavanaugh has consistently sought to rein in federal regulatory agencies that by his lights appear to be going beyond their legislative mandates. But this shouldn’t imply hostility to the goals of environmentalists — it is just that as a matter of constitutional principle, he believes, correctly, that it is Congress that should be making substantive policy decisions about matters of great significance, such as climate change, not the agencies themselves.
In an interview with Robinson Meyer of The Atlantic, Richard Lazarus of Harvard Law School, a leading scholar of environmental law, spoke admiringly of Judge Kavanaugh, describing him as “a really decent person, with enormous integrity.” However, he also noted that Judge Kavanaugh took the separation of powers very seriously. “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. He’s going to want to see specific language in the statute that says Congress really meant to give that authority away.” Viewed through this lens, the issue is not that Judge Kavanaugh objects to environmental protection. Rather, it is that “Congress hasn’t passed a major environmental law since it revamped the Clean Air Act in 1990.”
Having failed to persuade lawmakers to pass climate-change legislation in 2009, many environmentalists looked to the Environmental Protection Agency to do what lawmakers would not. That might have seemed like an expedient solution in the Obama years, or when a Hillary Clinton administration seemed foreordained. But as the environmental Left is learning to its dismay, decisions imposed by executive fiat are easily reversed. If Judge Kavanaugh has a message for environmentalists, it seems to be this: If you want ambitious new environmental policies, you must work through the legislative process, which will necessitate building large and diverse coalitions. I can’t imagine this will be a welcome message. In the end, though, it might give rise to an environmentalism that enjoys broader and deeper support.