Alaska Wilderness League * Bold Alliance * Center for Biological Diversity
Clean Water Action * Climate Hawks Vote * Defenders of Wildlife * Earthjustice
Endangered Species Coalition * Environmental Working Group * Friends of Earth
Green For All * GreenLatinos * Greenpeace USA * Hip Hop Caucus
Hoosier Environmental Council * Indivisible * League of Conservation Voters
National Lawyer Guild Environmental Justice Committee * National Lawyers Guild
Oil Change International * Sierra Club * Southern Utah Wilderness Alliance
The Wilderness Society * Waterkeeper Alliance * WE ACT for Environmental Justice

August 10, 2018
The Honorable Chuck Grassley, Chairman
Senate Committee on the Judiciary
United States Senate
Washington, DC 20510

The Honorable Diane Feinstein, Ranking Member
Senate Committee on the Judiciary
United States Senate
Washington, DC 20510

RE: Environmental Groups Oppose the Supreme Court Nomination of Judge Brett Kavanaugh
Dear Chairman Grassley and Ranking Member Feinstein:
The undersigned environmental groups write today on behalf of our millions of members
and supporters to express our strong opposition to the confirmation of D.C. Circuit Judge Brett
Kavanaugh to a lifetime seat on the United States Supreme Court. Judge Kavanaugh is an
unacceptable choice for the Supreme Court, and we urge the Senate to reject his nomination.
Judge Kavanaugh’s lengthy record on the federal bench exposes him as an activist judge who
has used cases to effectively rewrite statutes, creating new obstacles for agency regulation and
scuttling protective regulatory outcomes. His hundreds of judicial opinions and legal writings reveal
a judicial philosophy that is hostile to the power of government (especially agencies like the
Environmental Protection Agency), and that values corporate profits over people and the health of
the public. Moreover, Judge Kavanaugh’s decisions reveal a tendency to limit the public’s right to
access justice through the courts (such as by adopting obstructive “standing” requirements), while at
the same time removing barriers for polluters. As a result, a Supreme Court informed by Judge
Kavanaugh’s brand of judging would mean that courthouse doors will often be closed to people
seeking to protect the air they breathe, the water they drink, and the planet on which they live. At a
time when too many communities of color bear a disproportionate impact from toxic wastes, loose
emission standards, dangerous petrochemical facilities and pipelines placed in their communities,
we need a Supreme Court Justice that will combat environmental racism and fight for
environmental justice for all, regardless of race, ethnicity, national origin, citizenship status, or
income – not someone who will bar the courthouse doors on them.
The stakes for the current Supreme Court vacancy could not be higher. United States
Supreme Court Justices do not simply decide cases; they determine whether and how the law works,
and for whom. They define what the law means for generations to come, and the lower federal
courts are bound to follow the precedent they set. An appointment of a new Justice affects the very
nature of our democracy, fundamentally defining the landscape of American law.
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 Who serves as a Supreme Court Justice is among the most profoundly important choices we
make as a nation, and one of the most solemn duties that our constitution entrusts to the U.S.
Senate. In carrying out that duty, is it incumbent on the Senate to carefully, and thoroughly,
scrutinize every nominee, to thoughtfully consider every aspect of his or her judicial record and
legal philosophy, and to ensure a robust, fully informed, and transparent confirmation process. The
integrity of our system of laws depends on vetting that is both open and honest. In this regard, we
urge the Senate to demand all pertinent records from Judge Kavanaugh’s years as a political lawyer
in the George W. Bush White House (as provided under the Presidential Records Act), and fully
consider these materials before proceeding with confirmation hearings. In the end, a nominee to the
Supreme Court should be rejected unless he or she is willing to uphold the values, protect the rights,
and serve in the interests of the American people – not just corporations, the wealthy, and the
political elites.
I. Judge Kavanaugh’s Environmental Record Results in Dirtier Air and Water
In key cases, Judge Kavanaugh has backed the right of corporations to pollute the air and
water over the public’s right to breathe clean air, drink clean water, and live in safe communities.
As shown in dissents written by Judge Kavanaugh in White Stallion1 and Mingo Logan,2 he
reads burdensome obligations into the Clean Air Act and the Clean Water Act that the statutes do
not include in their text. For example, in White Stallion, he argued that the EPA could not even
consider limiting toxic mercury pollution from power plants without first evaluating the cost to the
power companies. And in Mingo Logan, he argued that before vetoing a permit that would have
allowed coal companies to dump toxic mining wastes into public waterways, EPA should have
considered the cost to coal companies. In both of these cases, he invented the requirement to
consider costs to industry where Congress did not include that requirement, while at the same time
seeking to force the EPA to ignore important real-world benefits – all in order to stack the deck in
favor of the outcomes desired by corporate polluters. This tendency to read into a statute the
requirement to consider costs to the corporate elites – while ignoring benefits to the environment,
and improvements in the health of children, families, and the American public – not only usurps
Congressional authority; it puts our health and well-being at risk.
Several of Judge Kavanaugh’s decisions would significantly reduce agency power to protect
public health, by recrafting statutes to eliminate authority that Congress has given agencies. For
example, his narrow interpretation of the Clean Air Act expressed in EME Homer City3 (an
interpretation later overturned by the Supreme Court) would have severely constrained EPA’s
ability to protect the people in downwind states from pollution emanating from upwind sources. His
interpretation in the Mexichem4 case prevented the EPA from requiring replacement of a harmful
chemical substitute for chlorofluorocarbons. His narrow reading of the phrase “air pollutant” in
Coalition for Responsible Regulation5 could undermine the regulation of greenhouse gases under
the Clean Air Act.

1

White Stallion Energy Center v. EPA, 748 F. 3d 1222, 1258-73 (D.C. Cir. 2014).
Mingo Logan Coal Co. v. EPA, 829 F.3d 710 (D.C. Cir. 2016).
3
EME Homer City Generation L.P. v EPA, 696 F. 3d 7 (D.C. Cir 2012).
4
Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017).
5
Coal. for Responsible Regulation Inc. v. EPA, 2012 U.S. App. LEXIS 25997 (D.C. Cir. Dec. 20, 2012).
2

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 His judicial writings also reveal his anti-regulatory approach to evaluating whether an
agency action is appropriate under the relevant statute. In cases that raise questions about whether
an agency has acted within the scope of its regulatory authority, Judge Kavanaugh favors a deeply
subjective “common sense” test – where the statute means whatever he thinks makes sense. Rather
than requiring an agency to fully divulge and explain its interpretation of a law that Congress has
entrusted it with administering, requiring notice and opportunity for public comment on such
interpretation, and then giving special consideration to the agency’s conclusions, Kavanaugh would
have judges simply impose their own, “common sense,” ad-hoc “best reading of the statute.”6 When
Judge Kavanaugh has utilized this approach, his “best reading” has been in service of his
inclinations toward limited federal authority to regulate, not in the best interest of achieving
Congress’ protective aims under the relevant statutory program. For example, in his dissent in US
Telecom Ass’n v FCC, 7 Judge Kavanaugh outlined a novel “major questions” doctrine that he
would have used to reject the FCC’s rational interpretation of legislative language and thereby
undermine its “net neutrality” rules that are intended to protect consumers. As a Supreme Court
Justice, we could expect more of the same, and such an ad-hoc approach to statutory interpretation
could ultimately increase regulatory uncertainty and create a perverse incentive for agencies to
under-regulate in the first instance.
II. Judge Kavanaugh Politicizes Agency Decision-Making Processes
Judge Kavanaugh’s record demonstrates a belief that federal agencies should be more
inherently political, which would compromise both the integrity and continuity of their decisionmaking. He has argued that all federal agencies should operate directly under the political thumb of
the President, and should function merely as political extensions of executive branch policymaking. He believes that any degree of separation from direct presidential control is
unconstitutional.
In Free Enter. Fund,8 Judge Kavanaugh’s dissent argued that the establishment of the Public
Company Accounting Oversight Board, an independent agency, violated separation of powers
principles because the board’s members are insulated from “at will” presidential removal.
Application of this legal principle would make all agencies more political, would increase
regulatory uncertainty, would undermine policy continuity, and would destabilize decision-making
related to important issues of safety, economic stability, consumer protection, public health, and the
environment. Part and parcel to this extreme view of separation of powers, Judge Kavanaugh
believes that sitting Presidents are all but immune from the legal consequence of their actions while
they are in office – effectively rendering them constitutionally above the law.
III. Judge Kavanaugh’s Corporate-serving Double Standard Blocks Access to Courts
One of the most troubling judicial philosophies revealed by Judge Kavanaugh’s decisions is
his limited view of the rights of ordinary people and public interest groups to access our court
system, and his contrastingly permissive view of corporations’ right to do so. Critical public health
6

Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92
Notre Dame L. Rev. 1907, 1912 (2017).
7
US Telecom Ass’n v. FCC, 855 F.3d 381 (D.C. Cir. 2017).
8
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F. 3d 667 (D.C. Cir. 2008); see also PHH Corp v.
Consumer Fin. Prot. Bureau, 839 F.3d 1 (D.C. Cir. 2017).

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 and environmental laws would have little power and meaning in practice if the public cannot get
into court to enforce them.
For example, in Grocery Mfrs. Ass’n v. EPA9 Judge Kavanaugh argued in dissent for giving
processed-food manufactures standing to challenge EPA’s approval of certain ethanol-containing
gasoline blends based solely on the mere chance of increased corn prices, even without
quantification of the speculative economic injury. Conversely, in Public Citizen, Inc. v. National
Highway Traffic Safety Admin,10 Judge Kavanaugh ruled against the public interest group and its
members’ right to be in court to challenge the adequacy of vehicle tire-safety standards on behalf of
highway drivers. He did so because Public Citizen did not demonstrate “with certainty” that its
members would suffer some particularized and currently identifiable harm other than an increased
risk from more severe accidents.
Judge Kavanaugh has a troubling pattern of siding with corporations, the wealthy, and the
powerful while erecting barriers for those defending the health, safety, and well-being of the
American people. It is essential that whoever occupies a seat on the Supreme Court upholds the
right of access to the courts for all, and honors the constitutional obligation to provide an impartial
check on the power of Congress and the President.
Conclusion
Judge Kavanaugh’s approach to the law threatens key elements of environmental and public
health protections, and makes it harder for people to hold the government and big corporate
polluters accountable. His confirmation to the United States Supreme Court would create a deeply
conservative majority that would tip the scales of justice and the law further away from the people’s
rights and more towards corporate control of our democracy. We strongly oppose Judge Kavanaugh
as a nominee and assert that careful scrutiny of his record reveals a predisposition to subordinate the
rights of people to the interests of corporate profit making. These qualities in a Supreme Court
Justice would threaten the health and well-being of children, families, workers, and communities,
and undermine efforts to protect the ecosystems, natural resources, and global climate systems upon
which we all rely. Accordingly, we strongly urge you to reject his nomination and vote against his
confirmation.
Sincerely,
Alaska Wilderness League
Bold Alliance
Center for Biological Diversity
Clean Water Action
Climate Hawks Vote
Defenders of Wildlife

9

Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169 (2012).
Public Citizen, Inc. v. National Highway Traffic Safety Admin., 489 F. 3d 1279 (D.C. Cir. 2008).

10

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 Earthjustice
Endangered Species Coalition
Environmental Working Group
Friends of Earth
Green For All
GreenLatinos
Greenpeace USA
Hip Hop Caucus
Hoosier Environmental Council
Indivisible
League of Conservation Voters
National Lawyer Guild Environmental Justice
Committee
National Lawyers Guild
Oil Change International
Sierra Club
Southern Utah Wilderness Alliance
The Wilderness Society
Waterkeeper Alliance
WE ACT for Environmental Justice

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