WILDLIFE SPECIES CASES DECIDED BY JUDGE BRETT KAVANAUGH ON THE DC CIRCUIT:
A PATTERN OF RULING AGAINST MOTHER NATURE
William J. Snape, III

September 4, 2018

Senior Counsel, Center for Biological Diversity
Assistant Dean and Professor, American University, Washington College of Law
ABSTRACT:
Brett Kavanaugh was nominated by President Donald Trump on July 9, 2018 to be the 114th
individual to serve on the United States Supreme Court. Before this nomination to be an associate
justice, Judge Kavanaugh served on the United States Court of Appeals for the D.C. Circuit for twelve
years. Although many progressive interest groups have expressed concern or objection over the
nomination – including environmental groups concerned about a wide range of issues from climate
change and toxic pollutants to safe drinking water and scientific integrity – no systematic analysis of his
D.C. Circuit decisions has been done for wildlife conservation. The federal laws of wildlife protection –
including endangered species, migratory bird, and marine mammal statutes – raise important and
poignant questions about the human relationship with the natural world, and about the rule of law
general.
During his dozen years on the federal bench, Kavanaugh has been a part of eighteen (18)
wildlife “species” decisions, and has ruled against wildlife 17.25 times (the fraction is explained by two
“split” decisions); this is a ninety-six (96) percent record against wildlife. By comparison, D.C. Circuit
Judge David Sentelle, former Chief Judge and conservative jurist, possesses a 57-43 “against wildlife”
score. Judge Merrick Garland, a former Chief Judge and moderate jurist, possesses a 46-54 “against
wildlife” score. These numbers, along with Judge Kavanaugh’s own words through his written decisions,
demonstrate a tangible and significant bias against wildlife conservation. Whenever a vested economic
interest runs up against a wildlife conflict, Judge Kavanaugh almost always rules against the public
interest in wildlife protection.
METHODOLOGY
All D.C. Circuit cases mentioning the word “species,” “marine mammal,” “wildlife,” or “migratory
bird” were identified, using the names of Judges Kavanaugh, Sentelle and Garland as an additional filter.
Several cases identified possessed more than one of the searched terms. Many other identified cases
had one or more terms, but possessed no cause of action or sought relief pertaining to actual wildlife
protection in any way; these cases were excluded. All of the wildlife cases involving Judge Kavanaugh
are listed and discussed in this paper, infra. The approach was conservative in that a case where wildlife
conservation was a background issue, but the decision was based on a procedural matter unrelated to
federal wildlife law in any meaningful way, was excluded. Similarly, Kavanaugh cases primarily dealing
with public health or general environmental issues were also excluded from this study.

1

 ANALYSIS
Federal wildlife law is mostly a statutory or treaty phenomenon, implemented by federal agency
rules and policies. Traditionally, the states of the United States union possess primary jurisdiction over
wildlife, which the states hold in trust for their people.1 Utilizing primarily the commerce, tax, treaty,
and/or federal lands clauses of the U.S. Constitution, Congress has been participating in wildlife
conservation efforts in the United States since the 1900 Lacey Act.2
Today, a bevy of federal statutes – ranging from the Endangered Species Act3 and Marine
Mammal Protection Act4 to the Migratory Bird Treaty Act5 and the Magnuson-Stevens Fisheries
Conservation Act6 (not to mention the National Environmental Policy Act7 and public lands laws8) –
provide protections to thousands of different fish and wildlife species. While the Environmental
Protection Agency (EPA) figures into some of these federal wildlife decisions, most of the decisions are
by other “environmental” agencies including the Department of the Interior, Interior’s Fish and Wildlife
Service (FWS) and Bureau of Land Management (BLM), the Department of Commerce, Commerce’s
National Marine Fisheries Service (NMFS), the U.S. Army Corps of Engineers, the Forest Service under
the Department of Agriculture, the Department of State, and others.
Examining Judge Kavanaugh’s wildlife cases on the D.C. Circuit is instructive for at least two
reasons. First, these cases involve a variety and diversity of parties and legal issues that affect many
other sectors of society. Second, the entire concept of wildlife conservation is frequently one where a
vested and specific economic interest is somehow pitted against the public’s interest in wildlife
protection generally. All U.S. wildlife statutes possess mechanisms to address and ameliorate these
conflicts, but because only a human being can currently possess legal standing to sue in U.S. courts,
humans seeking to protect wildlife species often must literally challenge other human economic
development. In other words, the “public interest” is the central beneficiary of wildlife conservation
writ large.9

1

See Hughes v. Oklahoma, 441 U.S. 322 (1979)(discussing state government trustee role in protecting wildlife not
otherwise protected by the federal government).
2
The original Lacey Act, amended several times subsequently, was written to prevent wildlife taken in violation of
one state’s laws to be taken to another state. 16 U.S.C. §§ 3371-78. See also 1934 Fish and Wildlife Conservation
Act, also subsequently amended, 16 U.S.C. §§ 661-667(c), which requires the federal government to minimize and
mitigate the adverse impacts upon wildlife from federal projects.
3
ESA, 16 U.S.C. §§ 1531 et seq.
4
MMPA, 16 U.S.C. §§ 1361 et seq.
5
MBTA, 16 U.S.C. §§ 703 et seq. See also 50 C.F.R. § 10.13 (current list of protected birds under the Migratory
Bird Treaty Act and treaties).
6
FCA, 16 U.S.C. §§ 1801 et seq.
7
NEPA, 42 U.S.C. §§4321 et seq.
8
See, e.g., National Park Organic Act, 16 U.S.C. §§ 1 et seq.; National Forest Management Act, 16 U.S.C. §§ 1601 et
seq.; Federal Land Management and Policy Act, 43 U.S.C. §§ 1701 et seq.; National Wildlife Refuge System Act, 16
U.SC.§§ 668dd et seq.
9
See Joseph Tomain, Kavanaugh’s political leanings likely will be written into law, Cincinnati Enquirer (August 6,
2018)(Because “environmental” cases often “pit corporate interests against the public interest for a clean and
healthy environment. Here, Kavanaugh’s ‘hands-off’ approach to policy is jettisoned. In his opinions, Kavanaugh is
unafraid to strain the interpretation of statutes, engage the judiciary in policymaking, and, on occasion, give mini

2

 In other areas of environmental law, those mostly relating to the EPA, Judge Brett Kavanaugh
holds well-recognized skepticism toward Clean Air Act protection and global warming regulation.10 The
question accordingly arises whether Judge Kavanaugh possesses other objective biases.11 In this study,
all of Judge Kavanaugh’s D.C. Circuit decisions involving animal and plant “species” were analyzed, as
discussed in the Methodology, supra. An examination of wildlife law is particularly relevant and timely
because of the Supreme Court’s upcoming Endangered Species Act case Weyerhaeuser Company v. U.S.
Fish and Wildlife Service, scheduled to be argued on October 1, 2018.12
Justice Kennedy, as is well recited, was often the swing vote on the United States Supreme Court
in favor of environmental and wildlife protections under the Clean Water Act, Clean Air Act, Endangered
Species Act and other laws.13 Judge Kavanaugh, however, does appear to have a statistical proven bias
against wildlife species during litigation. Of the eighteen (18) wildlife “species” cases that he has
actively participated on during his twelve year tenure on the D.C. Circuit, he has ruled against wildlife
species easily over seventeen times (17.25 to be exact, because two decisions possessed “split” species
outcomes). Thus, wildlife species lose approximately 96% of the time when before Judge Kavanaugh.
In addition, when Judge Kavanaugh issues written decisions on wildlife species himself, it is always
strongly and stridently on the side against wildlife and species protection.
Whenever wildlife is up against either a corporation or the Republican Party, Kavanaugh goes
out of his way to defeat wildlife. The highlights or lowlights include:
American Bird Conservancy v. FCC (Kavanaugh, in dissent, misstating conservation plaintiff’s
injuries);
Carpenter Industrial Council v. Zinke (Kavanaugh granting standing to timber industry to
challenge threatened spotted owl critical habitat on federal public lands even if industry
loses one dollar);
Otay Mesa, LP v. Interior (Kavanaugh, in an Endangered Species Act critical habitat case,
holding FWS biologists to very high level of scientific certainty);

lectures on constitutional law and government. His environmental law opinions, then, directly involve policy and
politics. In other words, Kavanaugh is unafraid to make, not follow, the law.”).
10
See, e.g., EPA v. EME Homer City Generation, 572 U.S. ____ (2014)(Supreme Court overturns Judge Kavanaugh’s
decision 6-2 in a case where Kavanaugh holds EPA to an illegally high standard of review, with human lives and
health on the line); Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017)(Kavanaugh, over a powerful dissent,
creates new reading of Section 612 of the Clean Air Act that allows foreign manufacturers of ozone-depleting and
climate change-inducing hydrofluorocarbons to avoid regulation; this decision, too, has been appealed to the U.S.
Supreme Court on a writ of certiorari).
11
According to an August 2018 Public Citizen study, Judge Kavanaugh ruled in favor of Big Business – defined as
the Chamber of Commerce, National Association of Manufacturers, and American Petroleum Institute – in twenty
five (25) of the thirty three (33) cases in this category, for a 76% favorable bias rate.
https://www.chamberofcommercewatch.org/judge-kavanaugh-business-decisions/
12
See 827 F.3d 452 (5th Cir. 2016), sub. Nom. Markle v. USFWS (underlying decision from which the Supreme Court
agreed to hear the appeal).
13
See, e.g., Massachusetts v. EPA, 549 U.S. 497 (2007)(forcing EPA to take action under the Clean Air Act against
global warming and climate change); Rapanos v. United States, 547 U.S. 715 (2006)(regulation of wetlands under
the Clean Water Act); Babbitt v. Sweet Home Chapter of Communities, 515 U.S. 687 (1995)(upholding the inclusion
of “habitat harm” as definition of “take” under the Endangered Species Act).

3

 Mingo Logan v. EPA (Kavanaugh , in dissent, seeking to overturn EPA decision to address
massive water pollution from mountain top removal for coal extraction);
West Virginia v. EPA (one of a series of decisions and currently active cases where
Kavanaugh expresses hostility toward regulating greenhouse gases that kill wildlife and
humans alike); and
Fund for Animals v. Kempthorne (Kavanaugh dismissing importance of four migratory bird
treaties in a separate and unnecessary concurrence).
All of these wildlife species related decisions, including Kavanaugh’s frequently hostile written opinions,
are discussed and analyzed more fully below, in chronological order. Cumulatively, Kavanaugh’s 96%
record against wildlife represents a noticeable bias. 14
FULL LIST OF KAVANAUGH WILDLIFE SPECIES CASES FROM THE DC CIRCUIT
Fund for Animals v. Kempthorne, 472 F.3d 872 (D.C. Cir. 2006)(Two opinions by Kavanaugh)
In Judge Kavanaugh’s first wildlife case on the D.C. Circuit, he made his anti-wildlife sentiment
immediately known. He took the unusual step of writing both the opinion of the court, as well as an
unnecessary concurring opinion, which no other judge joined, addressing his view that the Migratory
Bird Treaties15 are a not a self-executing and, thus, deserve no credence in interpreting the Migratory
Bird Act (MBTA) itself. This is an absurd position, and completely ignores the many treaties that have
shaped U.S. wildlife statutes.16 It is also a position that reveals Kavanaugh’s many conflicting views on
executive power and privilege.17 In this case, an animal welfare group and property owners challenged
the U.S. Fish and Wildlife Service’s decision not to list the mute swan as protected under the MBTA, in
response to a plan by the Maryland Department of Natural Resources to kill a portion of the state’s
adult mute swans. The MBTA was passed in 1918 pursuant to the first Migratory Bird Treaty of 1916
with the United Kingdom and Canada, and the statute explicitly makes it “unlawful to hunt or kill
14

Judge Kavanaugh’s 96-4 “against wildlife” total score is notable because other judges on the D.C. Circuit possess
scores much better than Kavanaugh’s. Judge David Sentelle, for example, undoubtedly a conservative jurist,
appointed by President Reagan to fill Justice Scalia’s seat on the D.C. Circuit, possesses a 57-43 “against wildlife”
score. Judge Merrick Garland, President Obama’s pick to replace Justice Scalia on the Supreme Court, but who
never received a vote by the majority Senate Republicans, possesses a 46-54 “against wildlife” score, meaning he
votes with wildlife 54% of the time.
15
See Convention for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-Gr.Brit. (on behalf of Canada), 39 Stat.
1702; Convention Between the United States of America and the United Mexican States for the Protection of
Migratory Birds and Game Mammals, Feb. 7 1936, U.S.-Mex, 1936 U.S.T. 86; The Convention Between the
Government of the United States of America and the Government of Japan for the Protection of Migratory Birds in
Danger of Extinction, and Their Environment, Mar. 4, 1972, U.S.-Japan, 25 U.S.T. 3329; Convention Between the
United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory
Birds and Their Environment, Nov. 19, 1976, U.S.-USSR, 29 U.S.T. 4647.
16
See, e.g., 1911 Treaty for the Preservation and Protection of Fur Seals, 37 Stat. 154; 1942 Western Hemisphere
Convention on Nature Protection and Wildlife Preservation, 161 UNTS 193; 56 Stat. 1374; 1975 Convention on
International Trade in Endangered Species of Wild Fauna and Flora, 12 ILM 1085; 1976 Agreement on Conservation
of Polar Bears, 13 ILM 13.
17
Despite voluminous U.S. Supreme Court precedent upholding the law-making force of treaties pursuant to U.S.
CONST. Art. II, Sec. 2, Kavanaugh’s unnecessary “extra” concurrence also oddly laments treaties’ ability “to
eliminate the House of Representatives from the law-making process.” 472 F.3d at xxx (Kavanaugh dissent). See
also Darren Samuelsohn, Kavanaugh’s words on Presidential probes come back to haunt him,” Politico (July 10,
2018). https://www.politico.com/story/2018/07/10/brett-kavanaugh-presidential-investigations-708705

4

 migratory birds included in the terms of the conventions.” Congress amended the MBTA in 2004 so that
it “applies only to migratory bird species that are native to the United States or its territories.” Plaintiffs
argued here that the MBTA still includes protection for the mute swan because: (1) the statute still reads
that it is unlawful to hunt or kill any migratory bird that is “included in the terms of the conventions,”
and the “sense of Congress” provision within the amended statute stated that, “it is the sense of
Congress that the language of the section is consistent with the intent and language of the 4 bilateral
treaties implemented by this section,” and (2) the statute must therefore be deemed ambiguous and
not interpreted to abrogate a treaty. Kavanaugh ruled against wildlife by holding that the Migratory
Bird Treaty Act excluded mute swans despite the wording of the four migratory bird treaties to the
contrary. Mute swans can be managed, but under the auspices of the MBTA.
Kavanaugh Decision:

Against Wildlife Species

Oceana v. Gutierrez, 488 F. 3d 1020 (D.C. Cir. 2007)
Judge Kavanaugh is part of a majority decision that rejected an Endangered Species Act
consultation challenge to the Department of Commerce’s approval of longline fishing in the Atlantic
Ocean and Gulf of Mexico of swordfish and tuna. Despite undisputed scientific evidence that longline
fishing is killing too many endangered leatherback turtles, Kavanaugh and his panel decide for the Bush
Commerce Department. As the majority concedes at the end of their opinion … “since the [Reasonable
and Prudent Alternative] already includes hook and gear removal requirements, ‘the only remaining way
to achieve further reductions in leatherback mortality in the pelagic longline fishery would be through
closures that reduce fishing effort in areas of high leatherback bycatch.’” Although the federal agency
had the authority to issue such closures, it declined to do so here and many endangered sea turtles
consequently died.
Kavanaugh Decision:

Against Wildlife Species

American Bird Conservancy v. FCC, 516 F.3d 1027 (D.C. Cir. 2008)(Dissenting Opinion by Kavanaugh)
The majority opinion rules that the Federal Communications Commission violated both the
NEPA and Section 7 of the ESA because of cell tower approvals in the Gulf Coast region that harmed
many bird species. Judge Kavanaugh dissented, calling the lawsuit by conservation groups “unripe.” Id.
at 1035. The two majority judges state in response to Kavanaugh: “Our dissenting colleague’s assertion
that this case is unripe … rests on the mistaken assumption that the Commission has set about
reconsidering Petitioner’s precise requests through its nationwide inquiry into the migratory bird issue.
However … [the Commission] nowhere indicates [it is] reconsidering the Gulf Coast petition calling for a
programmatic Environmental Impact Statement under NEPA, formal consultation under the ESA, or
notice of pending tower registration applications.” Id. at fn. 1. In addition, not even the Federal
Communications Commission (FCC) was making Kavanaugh’s extreme argument, as the majority noted:
“Neither point is lost on the Commission: not only does its brief not invoke the ripeness doctrine, but
while the Commission explicitly deferred consideration of Petitioners’ MBTA claim to the nationwide
proceeding, it denied and dismissed Petitioners’ ESA and NEPA claims.” Id.
Kavanaugh Decision:

Against Wildlife Species

5

 North Carolina Fisheries Association v. Gutierrez, 550 F.3d 16 (D.C. Cir. 2008)
Fishermen won a federal district court decision under the Magnuson-Stevens Fishery
Conservation and Management Act for the National Marine Fisheries Service’s failure to promulgate a
rebuilding plan for certain fish species following a determination such species were “overfished.” After
the district court then approved a remedy unsatisfactory to plaintiff fishermen, the D.C. Circuit heard
the appeal. Judge Kavanaugh and his panel rejected the appeal by the fishermen, opining that while it
“does seem rather peculiar – perhaps even a bit fishy – that the Service promulgated Amendment 15A
without accompanying regulations … we lack jurisdiction at this state in the proceedings.”
Kavanaugh Decision:

Against Wildlife Species

Eastern Niagara Public Power Alliance v. FERC, 558 F.3d 564 (D.C. Cir. 2009)(Opinion by Kavanaugh)
Judge Kavanaugh decided against several communities in western New York who were
challenging a 2007 Federal Energy Regulatory Commission (FERC) licensing decision that approved the
New York Power Authority’s (NYPA) 50-year relicensing application to operate the Niagara Power
Project, a hydroelectric facility about 5 miles downriver from Niagara Falls. Federal law directs the FERC
to issue licenses for the “construction, operation, and maintenance of hydroelectric projects on certain
U.S. waters,” and in ruling on the licensing applications for hydroelectric facilities, FERC must consider
an array of criteria. Some of these criteria include: energy conservation, the protection of fish and
wildlife, recreational opportunities, and environmental quality, and specifically for relicensing
applications, factors including: the project’s safety, efficiency, reliability, and its effects on the
communities it serves. In arguing against FERC, the plaintiffs made several arguments, including: (1)
that a 50-year license was too long and not consistent with agency practice regarding the terms of
licenses; and (2) that FERC, as a condition of granting the license, should have required the state power
agency to mitigate certain adverse environmental impacts allegedly caused by the project, particularly
shoreline erosion. Judge Kavanaugh ruled against wildlife by holding that the 50-year license to operate
the Niagara Power Project was “reasonable” despite the real negative impacts the New York citizens had
identified with the FERC project.
Kavanaugh Decision:

Against Wildlife Species

Otay Mesa, LP v. U.S. Department of the Interior, 646 F.3d 914 (D.C. Cir. 2011)(Opinion by Kavanaugh)18
Judge Kavanaugh wrote the decision upholding the Endangered Species Act challenge by the
real estate industry, which sought rejection of the U.S. Fish and Wildlife Service’s (FWS) designation of
critical habitat for the San Diego fairy shrimp. Although the federal district court judge in this case
found, based on expert biologist testimony, that “FWS was reasonable in its consideration that San
Diego fairy shrimp found in a hospitable location in 2001 would have also occupied the same location in
1997,” Judge Kavanaugh was typically unimpressed with federal scientific expertise. Kavanaugh

18

For full disclosure, the author represented and argued for the Defendant-Intervenor, which was on the losing
side of the case.

6

 overturned the district court’s factual assessment, finding that FWS needed to continue looking for rare
habitat of a highly endangered species.
Kavanaugh Decision:

Against Wildlife Species

Sierra Club v. Van Antwerp, 661 F.3d 1147 (D.C. Cir. 2012)
In this case, Judge Kavanaugh was on a panel that ruled almost entirely on behalf of the U.S.
Army Corps of Engineers, for that agency’s decision to issue a permit authorizing the discharge of
dredge and fill material into specified wetlands – including waters of the United States – outside rapidly
developing Tampa, Florida. Although the district court had found the Corps to be in violation of the
Clean Water Act, Kavanaugh’s panel reversed almost in its entirety. Conservationists argued that the
project adversely impacted the wood stork and the indigo snake. The panel and Kavanaugh rejected
further protections for the wood stork entirely. For the indigo snake, despite unrebutted expert
testimony from the FWS biologist about negative impacts to the snake, “we do not reach the issue of
whether formal [ESA Section 7] consultation is required, but the Corps must make some determination
on the issue of habitat fragmentation, both for ESA and NEPA purposes.”
Kavanaugh Decision:

Three-Quarters Against Wildlife/One-Quarter For Wildlife Species19

Friends of the Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012)
Judge Kavanaugh was part of a majority that overturned a federal district court decision in favor
of the West Virginia Northern Flying Squirrel and its recovery plan. Kavanaugh interpreted the recovery
plan as non-binding and allows the delisting of this species despite the fact the requirements of the
recovery plan were not met. As Circuit Judge Rogers stated in dissent: “[Kavanaugh] defers to the
Secretary’s interpretation, contrary to the plaint text of the Endangered Species Act … that [the squirrel]
loses all protections even though the recovery criteria in its recovery plan have not been met and those
criteria are revised … without required notice and prior consideration of public comments. But even
assuming, as the court concludes, the ESA is ambiguous, the Secretary was arbitrary and capricious in
delisting the squirrel based in material part on an analysis revising the recovery plant criteria that was
not publicly noticed until the final delisting rule …”
Kavanaugh Decision:

Against Wildlife Species

19

Kavanaugh did not order ESA Section 7 consultation in this case despite the clear federal scientific evidence that
the snake would be harmed. On other environmental cases where it has been alleged Kavanaugh was “proenvironment,” these very small handful of decisions are easily explainable on other grounds. See, e.g., American
Trucking Associations v. EPA, No. 09-1090 (D.C. Cir. 2010)(Kavanaugh upheld stricter California motor vehicle
standards); National Mining Assoc. v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014)(Kavanaugh held that the Clean Water
Act did not prohibit interagency coordination and that an EPA guidance on state-issued water pollution permits
was not subject to judicial review); NRDC v. EPA, No. 10-1371 (D.C. Cir. 2014)(Judge Kavanaugh denied NRDC
petition on cement pollution except with regard to clearly suspect EPA affirmative defense policy in the agency
rule). Assuming these flimsy “defenses of the environment” represent “two total wins,” even a broken clock is
correct twice per day.

7

 Conservation Force v. Jewell, 733 F.3d 1200 (D.C. Cir. 2013)
Judge Merrick Garland wrote for the unanimous panel that included Judge Kavanaugh, and ruled
against plaintiffs (backed by the Sierra Club) who were challenging the FWS’s protection, management
and import permitting of the markhor, “an impressive subspecies of wild goat inhabits an arid,
mountainous region of Pakistan.” Despite repeated delays in responding to plaintiffs, the majority panel
held that the cause of action to downlist the species was moot, and that plaintiffs possessed no standing
to challenge the FWS’s considerable delays in processing permits.
Kavanaugh Decision:

Half-Against Wildlife Species/Half-For Wildlife Species

Center for Biological Diversity v. EPA, 749 F.3d 1079 (D.C. Cir. 2014)
Plaintiffs challenged EPA’s delays in issuing required new “secondary” national ambient air
quality standards for oxides of nitrogen, oxides of sulphur, and other related compounds that contribute
to “acid rain.” The impacts from acid rain can be devastating to ecosystems, from harming water
bodies of all kinds and sizes, to killing many plants and trees in certain forests. EPA had already
admitted that the current secondary air standards were “not adequate to protection against the adverse
impacts of aquatic acidification on sensitive ecosystems.” However, because EPA convinced a panel,
which included Kavanaugh, that it was not yet “certain” it could promulgate a standard, Kavanaugh and
his fellow judges let EPA off the hook in following a clear obligation of the Clean Air Act. The court
concluded: “In other words, the fact that we have rejected certainty as an appropriate goal … does not
mean that regulation is required (or permitted) no matter how much uncertainty the agency faces.”
Kavanaugh Decision:

Against Wildlife Species

Friends of Animals v. Ashe, 808 F.3d 900 (D.C. Cir. 2015)(Opinion by Kavanaugh)
Kavanaugh wrote the majority opinion for the Court. In March 2012, Friends of Animals
petitioned the FWS to list 10 species of sturgeon as endangered or threatened. Under the ESA, the
agency is to make an initial determination on the species petition within 90 days of receipt of the
petition; here, the FWS issued no determinations for any of the species petitioned. On August 16, 2013,
well over the 90 day period, Friends of Animals sent the FWS written notice that the agency had failed to
make initial and final determinations for the 10 species of sturgeon. The federal government argued that
Friends of Animals had failed to provide proper notice of the lawsuit. Kavanaugh stated that, “The
question here—whether Friends of Animals complied with the notice requirement of the Act—boils
down to a very narrow and extraordinarily technical question regarding the timing of notice,” and that
[because] Friends of Animals did not wait until after the issuance of the positive initial determinations to
provide 60 days’ notice of the allegedly overdue final determinations, its suit seeking to compel the final
determinations is barred.”
Kavanaugh Decision:

Against Wildlife Species

8

 Defenders of Wildlife v. Jewell, 815 F.3d 1 (D.C. Cir. 2016)
Kavanaugh was part of a panel that ruled against ESA protections for the dunes sagebrush lizard
of New Mexico and Texas, whose habitat closely overlaps with current and potential drilling actions by
the oil and gas industry. At issue in this case was whether a weak and unenforceable state management
agreement could be considered in denying ESA protections for the lizard. Despite serious problems with
the Texas plan especially, the panel side-stepped the issue adequacy of the state conservation plans by
noting that the Interior Department had “new information” from the states, the federal agencies, and
industry itself that indicated “current and future threats are not of sufficient imminence, intensity, or
magnitude to indicate that the lizard … is in danger of extinction, or likely to be become endangered
within the foreseeable future” (reversing an earlier decision to the contrary by FWS).
Kavanaugh Decision:

Against Wildlife Species

Ark Initiative v. Tidwell, 816 F.3d 119 (D.C. Cir. 2016)
Kavanaugh is part of a panel that rules against full protections for “roadless areas” under the
National Forest Management Act and NEPA. Despite the requirements that roadless areas contain no
roads or development, this panel allows the Forest Service to permit ski facilities in prime wildlife
habitat for the lynx and countless other species. The result of the decision here is to allow recreational
skiing on about 8,300 acres of land.
Kavanaugh Decision:

Against Wildlife Species

Friends of Animals v. Jewell, 824 F.3d 1033 (D.C. Cir. 2016)
Plaintiffs and Appellants were trying to protect three species of ESA-listed foreign antelopes: the
scimitar-horned oryx, addax, and damma gazelle. After the Bush administration issued an import take
permit exemption for these three highly endangered mammals, Friends of the Animals successfully
sued to stop the harmful practice of sport hunt importing. After that previous litigation, Congress
passed a rider on an appropriations bill allowing the Fish and Wildlife Service (FWFS) exemption
program for the three species of antelope. The D.C. Circuit, including Judge Kavanaugh, upheld
Congress’ ability to pass such riders: “Congress acted within constitutional bounds when it passed
Section 127. Therefore, there can be no doubt that the [FWS] was fully authorized to reinstate the
Captive-Bred Exemption.”
Kavanaugh Decision:

Against Wildlife Species

Patuxent Riverkeeper v. FERC, 828 F.3d 949 (D.C. Cir. 2016)
Judge Kavanaugh is part of a panel that rules against species protection, including on behalf of
the highly endangered North Atlantic Right Whale under NEPA. At issue in this case was approval of the
highly controversial Cove Point liquefied natural gas (LNG) plant off the west shore of the Chesapeake
Bay, Maryland. The judges, including Kavanaugh, held that “because petitioners fail to show that the
9

 Commission’s NEPA analysis was deficient for failing to consider indirect effects of the Cove Point
conversion project or inadequately considered their remaining concerns and that the Commission
[FERC] thus acted arbitrarily and capriciously, we deny the petition for review.”
Kavanaugh Decision:

Against Wildlife Species

Mingo Logan Coal Co. v. EPA, 829 F.3d 710 (D.C. Cir. 2016)(Dissenting Opinion by Kavanaugh)20
Judge Kavanaugh wrote a defiant dissent in a case involving the waste caused by mountaintop
removal to mine coal. Although EPA had voluminous scientific studies demonstrating that dumping this
waste into rivers and streams would have an “unacceptable adverse effect” to the environment,
including wildlife species, Kavanaugh would have issued the mining company the permit, which EPA had
revoked through its clear and unambiguous authority under the Clean Water Act.21 In other words,
Kavanaugh had no problem with the coal company continuing to pollute and destroy rivers and streams
with their waste from an industrial practice that already greatly contributes to global warming and toxic
air pollution. Kavanaugh wanted coal company cost-benefit analyses to override the agency’s public
health assessments. As the majority said of Kavanaugh’s dissent: “In reply to our dissenting
colleague's one-paragraph cri de coeur characterizing Mingo Logan's forfeiture as "entirely unfair" based
on EPA's stance that costs are "irrelevant," Dissenting Op. at 21, we have an equally pithy reply: A party
has an obligation to substantiate its position, including in the face of its opponent's rejection thereof …
Forfeiture here is hardly "unfair" to Mingo Logan but, in any event, its minimal proof of its costs—as far
as we can tell—mirrors their de minimis nature. And even if the EPA could be tagged with the "bait-andswitch" charge—a proposition we roundly reject—Mingo Logan's failure to prove up its costs on review
by the district court should mute its lament. In the end, Mingo Logan at no point—not before the EPA
nor in district court—made any effort to describe its costs or make an argument about them. In that
light, Mingo Logan can hardly now complain about unfairness. Moreover, as we have noted … Mingo
Logan effectively accepted the EPA's position on the relevance of its reliance costs. It is hardly "unfair"
to expect Mingo Logan to have raised whatever arguments it might have about the EPA's position before
the EPA itself.” 829 F.3d at 722 and Majority Opinion, Note 7.
Kavanaugh Decision:

Against Wildlife Species

Carpenters Industrial Council v. Zinke, 854 F.3d 1 (2017)(Opinion by Kavanaugh)
Judge Kavanaugh wrote the majority opinion for this case, in which the timber industry sued
FWS over its designation of critical habitat for the northern spotted owl in the Pacific Northwest. In
2012, FWS designated 9.5 million acres of federal forest lands in California, Oregon, and Washington as
critical habitat for the northern spotted owl under the ESA. In response to the designation, the plaintiff,
a forest products manufacturing trade association made up of companies that source timber from those
20

Weyerhaeuser Company v. U.S. Fish and Wildlife Service, the case currently before the U.S Supreme Court for
which the biased Kavanaugh could cast the deciding vote, is also focused on cost-benefit analysis, here under the
Endangered Species Act’s critical habitat statutory provisions. http://www.scotusblog.com/casefiles/cases/weyerhaeuser-company-v-united-states-fish-wildlife-service/
21
CWA, 33 U.S.C. §§ 1251 et seq. The CWA’s wetlands provisions, under Section 404 of the Act, have proven to be
a lightning rod for conservative legal activists, including Kavanaugh, over the years.

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 forest lands, sued the FWS to challenge the legality of this critical habitat designation. Kavanaugh
opened his decision by stating that, “when the government adopts a rule that makes it more difficult to
harvest timber from certain forest lands, lumber companies that obtain timber from those forest lands
may lose a source of timber supply and suffer economic harm,” noting that this has been a
“phenomenon occur[ing] in the Pacific Northwest …” Responding to the question of whether or not the
Council has standing to challenge the FWS designation of critical habitat, Kavanaugh ruled that the
Council had demonstrated a “substantial probability that the critical habitat designation will cause a
decrease in the supply of timber from the designated forest lands, that Council Members obtain their
timber from those forest lands, and that Council members will suffer economic harm as a result of the
decrease in the timber supply from those forest lands.” Judge Kavanaugh here ruled squarely in favor of
the timber and wood products industry, and against the conservation and protection of wildlife.
Kavanaugh Decision:

Against Wildlife Species

West Virginia v. EPA, active and pending, D.C. Circuit (Case No. 15-1363) (after stay and remand by U.S
Supreme Court)
This is the ongoing litigation by fossil fuel states and industries against the Obama Clean Power
Plan, which seeks to reduce greenhouse gas (GHG) pollution from utilities under Section 111 of the
Clean Air Act.22 At the two day oral argument before the D.C. Circuit in September 2016, Kavanaugh
asserted, “The policy is laudable. The earth is warming. Humans are contributing. I understand the
international impact and the problem of the commons. The pope’s involved. If Congress does this, they
can account for the people who lose their jobs. If we do this, we can’t.”23 Kavanaugh’s quote is
emblematic of the way he frequently deceives. First, Congress has already “done this” through the
Clean Air Act, which not only commands that EPA reduce all air pollutants that are found to harm human
health and public welfare, but also specifically includes the term “climate” as part of what the agency
must consider as “effects” on public welfare.24 Equally problematic, Kavanaugh’s position is at odds
with the U.S. Supreme Court’s historic decision in Massachusetts v. EPA, 549 U.S. 497 (2007) where a
coalition of states and environmental groups defeated the Bush administration’s refusal to regulate
GHGs under the Clean Air Act; the Supreme Court squarely held that EPA does have such authority and
must utilize it. Finally, as it relates to the power of Congress, Kavanaugh has unequivocally and
repeatedly attacked Congressional attempts to limit the amount of money and the secrecy of money in
federal elections.25 The Clean Power Plan litigation cuts to the heart of a central legal question to all of
environmental and wildlife law: would Kavanaugh support any meaningful attempt by EPA to regulate
and limit GHGs, or would he throw his lot behind President Trump and the small industry handful who
still deny climate change is even a problem? Further, would Kavanaugh support a repeal or weakening

22

See generally CAA, 42 U.S.C. §§ 7401 et seq.
Coral Davenport, Appeals Court Hears Challenges to Obama’s Climate Change Rule, The New York Times (27
September, 2016).
24
CAA, 42 U.S.C. § 7602 (h).
25
See, e.g., Emily’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009); Citizens United v. FEC, 558 U.S. 310 (2010).
23

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 of Massachusetts v. EPA? Literally thousands of plant and animal species, on land and in water, are at
grave risk because of global warming and climate change.26
Kavanaugh Position:

Against Wildlife Species

CONCLUSION
While it is undeniably typical for most long-standing federal judges to rule for and against
certain interests based upon the facts and law of a particular case, as well as the specific procedural
history of the case, it is nonetheless unusual for a judge on the federal bench to rule consistently against
one set of interests over another. Judge Kavanaugh regularly and routinely decides in favor of
corporate and industrial interests over the “public interest.” As it relates to wildlife “species” cases
specifically, Judge Kavanaugh’s meager 4% favorable decision record on behalf of wildlife “species” is
meager and alarming. Kavanaugh is a man who apparently has already made up his mind. He
frequently stretches statutes to comport with his own personal policy view of the world. Ninety-six
percent of the time, Mother Earth loses under Kavanaugh. A rational defender of wildlife conservation
would conclude that possessing only eight Justices for a few extra months might serve the Court, and
the country, best in the long run. 27 At the very least, no final vote should occur in the Senate until all of
Kavanaugh’s governmental records are released to the public. 28 The stakes are now too high for the
Supreme Court’s deciding vote to be driven by party allegiance. We need a truly independent and fair
jurist on the United States Supreme Court at this pivotal point in the country’s history. How many other
Trump appointees are like Kavanaugh?29 Whether Kavanaugh finishes his life-time judicial appointment
on the D.C. Circuit or the Supreme Court will ultimately be decided on political terms by our republican
democracy. From wildlife’s perspective, Judge Kavanaugh continues to need judicial oversight of his
one-sided opinions. The dusky gopher frogs in Weyerhaeuser Company v. U.S. Fish and Wildlife Service
would definitely prefer almost anyone else.30

26

See generally U.S. Global Climate Change Research Program, Climate Science Special Report: Fourth National
Climate Assessment (2017) (Human caused climate pollution leading to a number of negative impacts including
wildlife and habitat declines).
27
The U.S. Constitution places no upper or lower limit on the number of Supreme Court justices. The number
does not need to be nine. In the short term, the Senate should not be “rushed” in confirming an ideological jurist
who would tip the balance of the Court, particularly with mid-term elections coming up, as well as the ongoing
criminal investigation of the President and his aides. See, e.g., Nick Fahey, The Supreme Court Can Deal with Eight
Justices, CNBC (March 3, 2016)(noting that nearly 20% of all Supreme Court opinions since 1946 have been tie
votes); PolitiFact Texas, Sen. Ted Cruz Says “Long Historical Precedent’ for Smaller Supreme Court (November 23,
2016)(Throughout the history of the U.S. Supreme Court, there have been large gaps of time with only eight
justices, several times lasting over one year).
28
See, e.g., Sheryl Stolberg, White House Withholds 100,000 pages of Judge Brett Kavanaugh’s Records, The New
York Times (September 1, 2018); John Bowden, Feinstein ‘Alarmed’ National Archives is Withholding Kavanaugh
Documents, The Hill (August 8, 2018). http://thehill.com/homenews/senate/400860-feinstein-alarmed-nationalarchives-is-withholding-kavanaugh-documents ; Igor Bobic, Democratic Senator says Brett Kavanaugh confirmation
process is “Not Normal”, Huffington Post (September 2, 2018). https://www.huffingtonpost.com/entry/brettkavanaugh-documents_us_5b8c0a28e4b0cf7b00373cf9
29
Jordain Carney, Republicans confirming Trump’s court nominees at record pace, The Hill (May 1, 2018).
30
Cf. “And I brought you into a plentiful country, to eat the fruit thereof and the goodness thereof: but when ye
entered, ye defiled my land, and made mine heritage an abomination.” Jeremiah 2:7 (Old Testament, King James
Version).

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