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Judge Brett Kavanaugh of the Supreme Court, who has just been confirmed, who has many years of pro-business and anti-regulatory advice in a court of appeal, will likely tip the scales of the High Court in favor of 'a more restrictive interpretation of environmental law.
Kavanaugh's confirmation was more centered on allegations of sexual assault and temperament than on his criminal record. However, a careful review of his decisions over the course of his twelve years at the DC Circuit Court of Appeal reveals strong and well-formulated views that constrain government action in matters of pollution protection and environmental protection. wild habitat.
The DC Circuit Court is the second largest court in the country after the Supreme Court. Kavanaugh wrote about 300 notices, a quarter of which dealt directly with environmental law or administrative law, that is, questions about how government agencies such as the United States, the United States, the United States, and the United States. EPA interpret and implement legislative laws.
Kavanaugh calls himself after the late Justice Scalia, who has called himself a textist or strict constructionist, says Vermont Law Professor Pat Parenteau.
"He looks at the text of a law when he is asked to interpret it. If the text is not clear enough, it will often speak out against the interpretation of an organism, Parenteau said.
"In the field of the environment, it often means that written rules to increase the level of protection of public health and the environment do not often match the plain text of a law" continues Mr. Parenteau. "The statutes are [often] general and vague. Agencies try to interpret them as best as they can. "
Kavanaugh believes that government agencies need explicit Congressional guidelines to draft rules that impose costs on US companies. He therefore tends to oppose environmental laws offering extensive protection to public health or the environment, Parenteau said.
For example, while he was still at Circuit Court, Mr. Kavanaugh stated that the EPA was not empowered to require a chemical substitute used in refrigerants and devices. fire prevention that has proven to be a potent greenhouse gas. The EPA had adopted the use of this chemical because it did not deplete the ozone layer, but then decided that the substitution of a greenhouse gas for an ozone-depleting gas would was not a good policy.
"Kavanaugh looked at the wording of the Clean Air Act and said," No, the EPA's authority is limited to replacing one depleted ozone with another, but it can not take into account the change when it looks for alternatives ", explains Parenteau.
"This is an example of a very strict approach to the interpretation of the law, which has the net result that a virulent greenhouse gas is now on the market and was supposed to be a cure for the impoverishment of the ozone layer, but it will now cause climate change. "
While Judge Neil Gorsuch and now Kavanaugh reinforce the conservative wing of the court, any statutory or constitutional issues that would have already been addressed 5 to 4 in favor of broader environmental protection are likely to tip over, said Parenteau.
Therefore, with respect to the US government's ability to cope with the threat of climate change in the coming years, "we have to be realistic," says Parenteau.
"If we want to make progress on climate change in the United States, it will have to go through the legislative process," he said.
"This means a change in the composition of Congress, both in the House and in the Senate.In the current majority, there is really no realistic hope, I do not believe, of meaningful action on climate change, "said Parenteau. "It will take a major change in electoral politics in the US We could already see some of it in the mid-term elections in November, frankly, I hope we will, but time is running out and I do not think we can rely on the US courts (…) to provide the kind of remedy we need. "
This article is based on an interview by Steve Curwood on PRI's Living on Earth.
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