Supreme Court nominee Kavanaugh has a history of limiting regulation

Supreme Court nominee Brett Kavanaugh has a record of siding with companies like coal producers that challenge federal regulatory power.

Kavanaugh as a DC Circuit Court of Appeals judge wrote two dissenting opinions that said the US Environmental Protection Agency (EPA) had overstepped its authority by not considering the costs of its actions relative to the regulatory benefits.

President Donald Trump nominated Kavanaugh on 9 July to take over the spot of the court left vacant by justice Anthony Kennedy's retirement.

In Mingo Logan Coal Company vs EPA, Kavanaugh dissented in a 2-1 decision that allowed EPA to revoke part of a Clean Water Act permit for Arch Coal's Spruce mine in West Virginia.

"The bottom line is that EPA considered the benefits to animals of revoking the permit, but EPA never considered the costs to humans — coal miners, Mingo Logan's shareholders, local businesses, and the like — of revoking the permit," Kavanaugh wrote. "In my view, EPA's utterly one-sided analysis did not come close to satisfying the agency's duty under the Administrative Procedure Act and relevant Supreme Court precedents to consider and justify the costs of revoking Mingo Logan's previously issued permit."

Arch Coal did not respond to a request for comment.

Kavanaugh took a similar approach in his dissent in the White Stallion Energy Center vs EPA case. In that 2014 ruling, the court voted to uphold regulations limiting mercury and other pollutants from power plants — primarily those burning coal. The rules required existing power plants to implement maximum achievable control technology (MACT) to limit emissions.

Kavanaugh in his dissent argued that EPA did not consider the financial costs of implementing the regulations.

"The estimated cost of compliance with EPA's Final Rule is approximately US$9.6 billion/y, by EPA's own calculation," Kavanaugh wrote. "To put in perspective, that amount would pay the annual health insurance premiums of about two million Americans. It would pay the annual salaries of about 200 000 members of the US military. It would cover the annual budget of the entire National Park Service three times over."

In both cases, Kavanaugh stressed that he did not question EPA's ability to take regulatory action once the costs and benefits were considered. He faulted the EPA for not considering costs to begin with.

Other cases where Kavanaugh has ruled to limit regulatory action through strict interpretation of legislation include the Coalition for Responsible Regulation vs EPA and the United States Telecom Association vs Federal Communications Commission. In the Coalition for Responsible Regulation case, Kavanaugh wrote in the dissenting opinion that the EPA had overstepped its authority by adopting a new definition of air pollutants.

"Allowing agencies to exercise that kind of statutory authority could significantly enhance the Executive Branch's power at the expense of Congress's and thereby alter the relative balance of powers in the administrative process," he wrote. "I would not go down that road."

In the United States Telecom Association case, which upheld president Barack Obama's "net neutrality" rules, Kavanaugh argued that since Congress has never enacted net neutrality legislation, or clearly authorised the FCC to impose common-carrier obligations on Internet service providers, any net neutrality rule would be unlawful and must be vacated.

"The lack of clear congressional authorisation matters," he wrote. "In a series of important cases over the last 25 years, the Supreme Court has required clear congressional authorisation for major agency rules of this kind."

This opinion of what rules a federal agency may impose is seen as a challenge to earlier interpretations of the Chevron vs Natural Resources Defense Council case, which assumed agencies are generally permitted to issue rules resolving ambiguous statutes.

Because of such rulings, Kavanaugh's appointment has been opposed by environmental groups.

Earthjustice said the nominations "jeopardises people's ability to rely on the courts to protect their health, safety and the environment."

Kavanaugh "consistently sided with polluters over the best interest of the public and the agencies charged with protecting the public's health, welfare and the environment," the environmental group the Sierra Club said in a response to his nomination.