September 4, 2018
The Honorable Charles Grassley
Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510

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

Dear Chairman Grassley and Ranking Member Feinstein:
The Natural Resources Defense Council writes to express its
opposition to the nomination of Judge Brett Kavanaugh to a lifetime
position on the U.S. Supreme Court.
For more than four decades, NRDC has litigated to enforce federal laws and
regulations that protect public health and the environment. We value the importance of
an independent federal judiciary and do not oppose judicial nominations lightly. NRDC
has opposed only one other Supreme Court nominee in the last twenty-five years.
Judge Kavanaugh’s nomination, however, poses a unique threat to the principles
and public resources we defend on behalf of our three million members and activists.
During his tenure on the U.S. Court of Appeals for the D.C. Circuit, Judge Kavanaugh
has consistently favored corporate polluters over clean air and water. He has sought to
weaken the ability of federal agencies to protect the American people. And if confirmed
to the Supreme Court, he may try to close the courthouse doors to individuals and
citizen groups like NRDC who wish to enforce the laws that Congress enacted.
The next Supreme Court justice will likely cast the deciding vote on legal
questions that will shape the kind of world we leave to our children. As a result, that
justice must be devoted to enforcing Congress’s laws that protect public health and the
environment from harmful pollution. During his time on the D.C. Circuit, Judge
Kavanaugh has demonstrated that he does not fulfill that basic requirement.
1. Prioritizing Corporate Polluters Over Clean Air and Water
Judge Kavanaugh has a consistent track record of ruling against important
environmental measures designed to protect clean air and water. For example, in 2012
Judge Kavanaugh sought to strike down in its entirety an EPA rule addressing harmful
air pollution that crosses state boundaries. Judge Kavanaugh argued that the Clean Air

 Act purportedly precluded EPA from considering cost-effectiveness when determining
an upwind state’s emission-reduction responsibilities, and asserted—in a telling show of
hubris—that he “ha[d] no doubt that the agency chose incorrectly.”1 The Supreme Court
reversed Judge Kavanaugh’s opinion by a 6-2 vote, however, concluding that his
approach ignored the “realities of interstate air pollution,” and affirming that EPA’s rule
was a “permissible, workable, and equitable interpretation” of the Clean Air Act. 2
The cross-state air pollution ruling exhibits Judge Kavanaugh’s one-sided view
about the role of cost in environmental regulation—a view that consistently puts
corporate polluters’ interests ahead of clean air and water. His conclusion that the Clean
Air Act somehow prohibited EPA from considering costs when allocating emissionreduction responsibilities stands in stark contrast with his dissenting opinions in
subsequent cases, where he concluded that EPA was required to consider costs before
either regulating toxic mercury emissions from power plants or prohibiting a coal
company from dumping mining waste into valley streams.3 Thus, in Judge Kavanaugh’s
view, costs cannot be considered to justify imposing additional measures on laggard
polluters, but must be considered when they might support weakening restrictions. In
other words, Judge Kavanaugh expresses more concern with the economic bottom line
of coal companies’ “owners and shareholders”4 than with the clean air and water that
Congress enacted the underlying environmental statutes to protect.
Judge Kavanaugh’s dissenting opinions in these Clean Air Act and Clean Water
Act cases also reflect a bias against environmental protection that appears throughout
his judicial record. Dissenting opinions are often the most revealing about a judge’s
individual views of the law. During his time on the D.C. Circuit, Judge Kavanaugh has
authored ten dissents in environmental cases: In each one, he argued against the side
that sought to protect public health or the environment.5 Judge Kavanaugh appears to
EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 37 (D.C. Cir. 2012) (Kavanaugh, J.).
EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1605, 1610 (2014).
3 See White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1258-66 (D.C. Cir. 2014) (Kavanaugh, J.,
dissenting); Mingo Logan Coal Co. v. EPA, 829 F.3d 710, 730-35 (D.C. Cir. 2016) (Kavanaugh, J., dissenting).
4 Mingo Logan Coal, 829 F.3d at 733-34 (Kavanaugh, J., dissenting).
5 See id.; Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 562 (D.C. Cir. 2015) (Kavanaugh, J., dissenting);
White Stallion, 748 F.3d at 1258-73 (Kavanaugh, J., dissenting); Texas v. EPA, 726 F.3d 180, 199-205 (D.C. Cir.
2013) (Kavanaugh, J., dissenting); Grocery Mfrs. Ass’n v. EPA, 704 F.3d 1005-08 (D.C. Cir. 2013) (Kavanaugh, J.,
dissenting from denial reh’g en banc); Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 180-92 (D.C. Cir. 2012)
(Kavanaugh, J., dissenting); Coal. for Responsible Regulation, Inc. v. EPA, Nos. 09-1322+, 2012 WL 6621785, at
*14-23 (Dec. 20, 2012) (Kavanaugh, J., dissenting from denial of reh’g en banc); Howmet Corp. v. EPA, 614 F.3d
544, 554-56 (D.C. Cir. 2010) (Kavanaugh, J., dissenting); Sierra Club v. EPA, 536 F.3d 673, 680-82 (D.C. Cir.
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 have never authored a dissent arguing in favor of environmental protection.
2. Weakening Agencies’ Ability to Protect the American People
Consistent with his views in the above cases, Judge Kavanaugh has voted time
and again to restrict the ability of administrative agencies like EPA to carry out their
statutory missions to protect the public. Indeed, the White House outwardly boasts
about this aspect of his record, highlighting to industry trade groups on the night of his
nomination that Judge Kavanaugh overruled federal agencies 75 times in cases
involving clean air, consumer protections, and other issues, and specifically “helped kill
President Obama’s … new environmental rules.”6
And yet, Judge Kavanaugh often takes a more lenient approach to agency
authority when agencies seek to weaken environmental protections. For example,
during the George W. Bush administration, when other conservative D.C. Circuit judges
found that EPA violated the Clean Air Act by weakening requirements for power plants,
Judge Kavanaugh dissented and sought to justify the agency’s unlawful deregulation.7
And he did the same last year in the first environmental case to reach the D.C. Circuit
during the Trump administration, when he voted in favor of then-EPA Administrator
Scott Pruitt’s attempt to suspend new emissions restrictions for methane pollution.8
Climate change presents a particularly stark example where Judge Kavanaugh
has undermined agencies’ ability to protect the public. Judge Kavanaugh has voted
repeatedly to strike down EPA’s efforts to regulate greenhouse gases9—notwithstanding
the Supreme Court’s affirmation that the Clean Air Act authorizes EPA to protect the
public from climate pollutants.10 For example, Judge Kavanaugh last year struck down a
sensible EPA rule that required companies to swap out the potent climate pollutants
called HFCs for safer, readily available alternatives. His dissenting colleague observed
that Judge Kavanaugh’s “cramped” interpretation of the Clean Air Act renders EPA
2008) (Kavanaugh, J., dissenting); Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1035-37 (D.C. Cir. 2008)
(Kavanaugh, J., dissenting).
6 See Lorraine Woellert, Trump Asks Business Groups for Help Pushing Kavanaugh Confirmation, Politico, July 9,
2018, https://www.politico.com/story/2018/07/09/brett-kavanaugh-business-groups-trump-705800.
7 Sierra Club, 536 F.3d at 680-82 (Kavanaugh, J., dissenting).
8 Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017), reh’g denied Aug. 10, 2017 (Kavanaugh, J., dissenting).
9 See, e.g., Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017) (Kavanaugh, J.); Texas, 726 F.3d at 199205 (Kavanaugh, J., dissenting); Coal. for Responsible Regulation, 2012 WL 6621785, at *14-23 (Kavanaugh, J.,
dissenting from denial of reh’g en banc).
10 See Am. Elec. Power Co. v. Conn., 564 U.S. 410 (2011); Mass. v. EPA, 549 U.S. 497 (2007).

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 “powerless” and “makes a mockery” of Congress’s stated purpose to “‘reduce overall
risks to human health and the environment.’”11 Judge Kavanaugh’s interpretation was so
“extreme” that even the industry challengers did not advance it12, and several major
companies—alongside NRDC and seventeen states—have asked the Supreme Court to
reverse it.13
Judge Kavanaugh has sought to justify his dismal record on climate change by
invoking a legal theory he dubs the “major rules doctrine,” which—if adopted by the
Supreme Court—would have large deregulatory consequences across many fields, from
consumer protection and financial regulation, to healthcare and civil rights, to clean air
and water. Judge Kavanaugh’s theory prohibits federal agencies from taking actions
with great economic or political significance absent “clear congressional
authorization.”14 His view is that while existing law “allows an agency to rely on
statutory ambiguity to issue ordinary rules, the major rules doctrine prevents an agency
from relying on statutory ambiguity to issue major rules.”15 However, longstanding
Supreme Court precedent ensures agencies faced with statutory ambiguity can adopt the
rules that experts determine to be reasonable based on real-world conditions. Judge
Kavanaugh would discard that sensible approach for the most important questions
agency experts face.
This theory is deeply troubling in numerous respects. First and foremost, it
precludes agencies from using their existing statutory authority to protect the public
from “major” new problems. Instead, an agency would have to return to Congress for
new legislation, even if the best reading of the earlier statute indicated that Congress
intended to empower the agency to address such problems as they arise. Second, it
allows judges to pick and choose when they wish to impose this heightened burden on
agency regulations. Judge Kavanaugh admitted there is no “bright-line test that
distinguishes major rules from ordinary rules,” and that his theory “has a bit of a ‘know
it when you see it’ quality.”16 Third, as with much of Judge Kavanaugh’s record, the
theory has a distinctly one-sided result: it works only to prevent agencies from issuing
Mexichem Fluor, 866 F.3d at 468 (Wilkins, J., dissenting) (quoting 42 U.S.C. § 7671k(a)).
Id.
13 See Honeywell Int’l, Inc. v. Mexichem Fluor, Inc., No. 17-1703 (S. Ct.); NRDC v. Mexichem Fluor, Inc., No. 18-2
(S. Ct.).
14 U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of reh’g
en banc).
15 Id. at 419.
16 Id. at 422-23.
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 new rules, while ignoring entirely that agencies’ failure to regulate pursuant to existing
statutory authority often has great economic or political significance as well.
Judge Kavanaugh has also sought to undermine the ability of Congress to entrust
certain decision decisions to “independent agencies”—like the Consumer Product Safety
Commission, Federal Energy Regulatory Commission (FERC), and Nuclear Regulatory
Commission—which Congress has shielded from undue political influence in order to
focus on protecting the public. Recently, when voting to strike down the structure of the
Consumer Financial Protection Bureau as unconstitutional, Judge Kavanaugh
gratuitously questioned the constitutionality of all independent agencies.17 Perhaps the
most remarkable—and disturbing—aspect of this ruling is Judge Kavanaugh’s apparent
eagerness to revisit long-settled Supreme Court precedent that has governed the
separation of powers among the branches of our government for more than 80 years.
3. Closing Courthouse Doors to Citizens Who Seek to Enforce the Law
Finally, Judge Kavanaugh has expressed extreme views about access to the courts
that could severely restrict the ability of citizens—and citizen groups like NRDC—to
enforce the laws that Congress has enacted. The legal doctrine of “standing” requires
plaintiffs, at the outset of a lawsuit, to identify injuries caused by the challenged action
that could be redressed by a favorable court decision. In cases seeking to enforce
environmental protections, plaintiffs often satisfy this requirement by pointing to the
increased health risks caused by the challenged action. But Judge Kavanaugh, in a case
involving automobile safety regulations, questioned whether these types of “increasedrisk-of-harm claims” could ever satisfy constitutional standing requirements.18
That view, if adopted by the Supreme Court, could foreclose many of the lawsuits
that individuals and groups like NRDC bring to enforce Congress’s laws protecting
public health, safety, and the environment. It would make it exceedingly difficult to
challenge unlawful actions that expose the public to increased health risks—such as the
use of toxic substances in consumer products, the discharge of pollutants into drinking
water, or the release of dangerous emissions into the air. Corporate polluters could take
such actions with impunity, knowing that citizen groups could not challenge them in
court—no matter how blatantly unlawful their actions might be.

PHH Corp. v. CFPB, 881 F.3d 75, 179 n.7 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting); see also PHH
Corp. v. CFPB, 839 F.3d 1 (D.C. Cir. 2016) (Kavanaugh, J.).
18 Public Citizen, Inc. v. NHTSA, 489 F.3d 1279, 1294 (D.C. Cir. 2007) (Kavanaugh, J.) (internal quotation marks
omitted).
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 Meanwhile, Judge Kavanaugh’s approach to standing diverges sharply in cases
where corporate plaintiffs bring suit based on perceived economic harms. In those
cases, unlike with increased-risk-of-harm claims, Judge Kavanaugh applies a more
lenient “common sense” approach to determine whether the plaintiff would face any
impact to its economic bottom line.19 Indeed, Judge Kavanaugh is even more lenient
than his fellow D.C. Circuit judges in allowing corporate plaintiffs to challenge agency
regulations.20 Thus, Judge Kavanaugh’s standing jurisprudence—like so many other
aspects of his judicial record—favors corporate profits over protections for public health
or the environment.
For the foregoing reasons, we urge you and the other Senate Judiciary Committee
members to vote against Judge Kavanaugh’s nomination. At the very least, given the
stakes of a lifetime appointment to the Supreme Court, and the significant questions
that Judge Kavanaugh’s judicial record raises about his fidelity to the law, the
Committee should refrain from sending his nomination to the full Senate until it has
had an opportunity to review the complete record of his tenure in the White House.

Sincerely,

Rhea Suh
President
Natural Resources Defense Council

Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 (D.C. Cir. 2017) (Kavanaugh, J.).
See, e.g., Grocery Mfrs. Ass’n, 693 F.3d at 181-90 (Kavanaugh, J., dissenting); Morgan Drexen, Inc. v. CFPB, 785
F.3d 684, 698 (D.C. Cir. 2015) (Kavanaugh, J., dissenting).
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