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Kavanaugh is particularly skeptical about the new EPA programs . Like Scalia, he argues that the agency should issue a new rule only if Congress has granted them explicit and specific rules in legislation, such as the Clean Air Act or the Clean Water Act
. Kavanaugh has heard three important cases about the authority of the EPA under the Clean Air Act. In any case, he opposed the position of the agency.
"Why did he rule against the EPA in all three cases?" Asked Lazarus. "It's not like a Scalia – or, to some extent, an Alito – where you read their opinions and find that there's an antipathy, a hostility to the right to Scalia is sometimes even sarcastic in tone. "
" You never see that in Brett Kavanaugh, "he continued. "He is a really decent person, with enormous integrity, and he does not have that kind of curvature with him, but he is a conservative judge and a stickler for the concept of separation of powers." he wants to find an agency with a radical regulatory authority, with significant economic or social implications, he will want to find that the Congress really wanted it.He will want to see specific wording in the law that says that the Congress really wanted to give this authority. "
" It is, in the abstract, a perfectly fair and neutral principle, but it tends, in environmental law, to lead to a only answer, namely: No . "
This is not necessarily because Kavanaugh hates the cause of environmental protection, Lazarus tells me. Instead, it's because Congress has not passed any major environmental law since it overhauled the Clean Air Act in 1990. "When the EPA tries to find a really creative and pragmatic solution, it must, "he said.
One of those three Clean Air Act cases is a good example. It concerned the EPA's ability to regulate "inter-state air pollution", that is, pollution from coal-fired power plants in one state that sinks into another.
Kavanaugh J. found that The agency could not regulate this activity.The Law on Air Sanitation.The case was appealed to the Supreme Court – and the judges disagreed. Chief Roberts and Judge Kennedy joined the Liberals in favor of the EPA, asserting the rule. "They were more willing to read in that language [Clean Air Act] a pragmatic authority for the EPA "that of Kavanaugh, says Lazarus.
In the other two major cases of the Clean Air Act, the Supreme Court finally sided with Kavanaugh. . "It seems already to be somewhat listened [by the justices] on these issues," said Adler.
Apart from these major cases, Kavanaugh often, but not always, dismissed the agency. In 2013, he voted with the EPA, ruling that the agency was legally allowed to revoke a permit for mining in the mountains. A year later, when a different legal issue was debated in the same case, he voted against the agency.
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