Trump’s Supreme Court Candidates Leave Environmental Paper Trail

June 29, 2018, 11:24 AM

Speculation about who could replace retired Justice Anthony Kennedy began seconds after the 30-year U.S. Supreme Court veteran announced his departure June 27.

Of President Donald Trump’s 25 judicial candidates that could replace Kennedy, several have extensive environmental records, and many interpret the law to limit federal environmental policy.

“Obviously we know that the president liked Justice [Neil] Gorsuch, so we have that as a model of what to expect,” John C. Cruden, principal at Beveridge & Diamond PC in Washington, told Bloomberg Environment. “However, the president has been exceedingly unpredictable,” Cruden said.

“Any new justice on the court that’s confirmed prior to the midterms will affect environmental cases,” said Justin Pidot, an environmental law professor at University of Denver’s Sturm College of Law.

Here are the environmental records of the candidates that legal and environmental experts say are most notable:

Brett Kavanaugh, U.S. Court of Appeals for the District of Columbia Circuit judge
During his time on the D.C. Circuit, the former clerk for Kennedy and President George W. Bush staff secretary earned the reputation for thwarting the Obama administration on climate change.

Kavanaugh wrote the opinion in a 2017 case ruling that the EPA has no authority to require that companies replace refrigerant chemicals that are also greenhouse gasses with more sustainable alternatives.

He wrote the opinion that struck down portions of the Environmental Protection Agency’s Cross-State Air Pollution Rule in EME Homer City Generation, LP v. EPA.

Even his dissents in clean air cases have impact. The Supreme Court has relied on them multiple times in ruling against the agency.

Kavanaugh in a partial dissent had said the EPA should have considered the cost to the power industry before regulating toxic air pollution in the 2014 case White Stallion Energy Ctr. LLC v. EPA. That dissent was cited by the Supreme Court in Michigan v. EPA when it reversed the D.C. Circuit’s decision upholding the standards.

“In administrative law cases, he generally takes a very strict reading of the” Administrative Procedure Act, Kathryn Kovacs, a law professor at Rutgers University, said. “He could have a big influence in administrative law.”

William Pryor, 11th Circuit judge
Pryor, nominated to the appeals court in 2003 by President George W. Bush, has questioned the constitutionality of significant portions of the Clean Water Act and the Endangered Species Act. He previously served as Alabama attorney general from 1997 to 2004.

In 2000, Pryor was the lone state attorney general to file an amicus brief in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, arguing that the Constitution doesn’t give the federal government power to regulate intrastate waters that serve as a habitat for migratory birds.

“I don’t perceive it as anti-environment at all,” Pryor said during his 11th Circuit confirmation hearing.

“Making sure that there’s the proper balance of federal and state power allows state authorities and federal authorities to know where the lines are so that state environmental protectors can do their jobs as well,” he said.

Pryor has asserted that land use and wildlife protection should be “traditional areas of state environmental primacy” and should be free of federal regulation.

Mike Lee, U.S. senator from Utah
Lee clerked for Supreme Court Justice Samuel Alito and served as an assistant U.S. attorney. He became a senator for Utah in 2011.

In 2016, Lee blocked the Senate from taking on a bipartisan $220 million contaminated drinking water aid package for Flint, Mich., and other affected cities.

The Tea Party sweetheart, cited for assisting Texas Sen. Ted Cruz (R) in the 2013 government shutdown, also opposed an energy overhaul bill that was expected to move in tandem with the aid.

Lee is “incredibly skeptical of the federal government role in regulating industry,” Pidot said.

Pidot said Lee “staked out positions on public lands issues over and over again that local people should be able to do whatever they want on public lands with no restrictions whatsoever.”

“If he’s sincere about all the things he’s said about public lands, he would be radically more conservative on those issues than anyone else.”

Patrick Wyrick, Oklahoma Supreme Court justice
Wyrick is a long-time Oklahoma protege of EPA head Scott Pruitt. He has drawn opposition from environmental groups for his work in tandem with Pruitt in Oklahoma that included filing lawsuits targeting Obama-era carbon dioxide pollution limits for power plants and various Clean Air Act efforts, including an EPA plan to reduce haze from scenic vistas in national parks.

Environmental groups including the League of Conservation Voters urged senators to vote against Wyrick in his current path to be a judge for U.S. District Court for the Western District of Oklahoma.

“It’s tough math for sure for us to stop these nominees” with nearly lockstep Republican support, Craig Auster, PAC and advocacy partnerships director at the League of Conservation Voters, told Bloomberg Environment June 13.

The U.S. Senate Judiciary Committee approved Wyrick’s nomination on party lines, June 14.

Timothy Tymkovich, 10th Circuit judge
The former Colorado solicitor general assumed the role of chief judge of the circuit in 2015.

He wrote the dissenting opinion for Impact Energy Resources v. Salazar, case that struck a blow to drilling companies. He said that a 2009 cancellation of 77 land leases was invalid because the announcement wasn’t specific enough to be final agency action.

Allison Eid, 10th Circuit judge
While on the Colorado Supreme Court, Eid wrote a decision in 2012 that rejected a community group’s request for a hearing about oil and gas drilling permits near a site where a nuclear bomb exploded underground in 1969.

Thomas Hardiman, 3rd Circuit judge
The Georgetown University grad concurred on a court decision that ordered Citgo to reimburse the federal government and a shipping company $143 million for a 2004 oil spill in the Delaware River.

—With assistance from Dean Scott and Sam Pearson

To contact the reporters on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com, Sam McQuillan at smcquillan@bloombergenvironment.com, David Schultz at dschultz@bloombergenvironment.com and Ayanna Alexander at aalexander@bloomberglaw.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bloombergenvironment.com

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