In the coming months, barrels of ink will be spilled and perhaps a few tears shed over Brett Kavanaugh’s likely confirmation to the Supreme Court. After all, his addition will end a generational status quo in American jurisprudence. But, if change is coming, perhaps no area could benefit more than environmental law, and the ideal result would be a return to legislative action on climate change.

An overarching theme of the “originalist” legal thinking that lies at the center of conservative views of constitutional law is a general animosity toward the administrative state. For many political conservatives, giving broad quasi-legislative authority to executive branch agencies is an obvious violation of the separation of powers in which Congress, rather than an unelected bureaucracy, is charged with writing the law.

During Kavanaugh’s 12 years on the D.C. Circuit Court of Appeals, he decided against the Environmental Protection Agency on three separate occasions involving the Clean Air Act. In 2012, in particular, the President George W. Bush appointee dissented from a majority ruling that upheld Obama’s greenhouse gas regulations, arguing that the “EPA went well beyond what Congress authorized.”

Such skepticism of expansive readings of U.S. environmental statutes bodes ill for many of the Obama administration climate policies, most of which got their legal power from the Supreme Court’s 2007 ruling in Massachusetts v. EPA. The 5-4 decision, with retiring Justice Anthony Kennedy as the deciding vote, found the federal government could regulate greenhouse gas emissions through existing law.

As a result, the Obama administration used Massachusetts v. EPA to circumvent the legislative branch by imposing limits on greenhouse gas emissions through EPA regulation. The centerpiece of this strategy was the so-called Clean Power Plan, which mandated a 32 percent reduction in greenhouse gas emissions from the American power sector by 2030.

The Obama administration’s approach has already taken a beating. In early 2016, the Supreme Court took the unusual step of halting implementation of the rule pending resolution of a legal challenge. And after the election of President Trump, the EPA itself reversed course and is in the process of withdrawing the rule. Still, some on the environmental Left held out hope that a future Democratic administration could use the authority granted to them by Massachusetts v. EPA to enact a Clean Power Plan 2.0. Kavanaugh’s appointment suggests that even this may no longer be a realistic option.

In light of this, advocates of climate action must return their focus to where it should have been all along: Congress. Together, Republicans and Democrats must consider a “return to the well” regarding a carbon price. Between 2009-2010, a previous attempt to put a price on carbon through cap-and-trade legislation was unsuccessful because it failed to garner any Republican votes, and this may have cost a number of moderate Democratic congressmen their jobs in the 2010 midterm elections. However, in conjunction with a roll-back in the scope of landmark environmental laws like the Clean Air Act and limits to future regulation of greenhouse gas emissions, a revenue-neutral carbon tax could be enough to garner at least a modicum of Republican support on Capitol Hill.

If the trend in Trump administration appointments to the federal bench continues, federal agencies will have much less leeway to promulgate regulations. This situation may not please bureaucrats, but it needn’t be bad news for the environment. With almost no exceptions, if a broad tax on carbon were in place, businesses and consumers would quickly modify their behavior to build a less carbon-intensive economy. This, in turn, would cut down on the coincident emissions of particulate matter and other pollutants at the center of environmental controls.

As Judge Kavanaugh’s appointment coincides with a major revision of the regulatory state under President Trump, a new vision for environmental legislation must re-enter the public arena, lest the battle over climate emissions ultimately be lost.


Image credit: Rob Crandall

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