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Trump's Supreme Court pick could come back to bite him

July 13, 2018 from Weekly Climate Review, MacArthur Foundation 

President Donald Trump's pick to fill the vacancy on the U.S. Supreme Court generated a lot of consternation among environmentalists and Democrats this week, but no one talked about the potential downside for the Nominator-in-Chief.

Nominee Brett Kavanaugh, now on the bench of the U.S. Court of Appeals for the District of Columbia Circuit, did not take kindly to President Barack Obama's climate plans. However, Kavanaugh does not share Trump's denial of climate change. Rather, the judge shows a penchant for lawmaking over rulemaking—i.e. for Congress rather than federal agencies to set environmental regulations. So, as long as the Trump administration makes undoing federal rules its main line of business and enjoys a Republican majority in Congress, Kavanaugh looks like the man. But what would happen if Democrats were to retake the majority in Congress and the House and Senate went back into the business of making laws favorable to environmental protection? Would Kavanaugh ensure that Trump's desires prevail? Maybe not.

Some of the sharpest warnings about Kavanaugh came from Bill Snape, an environmental law fellow at the American University Washington College of Law, who likened the nominee to Harry Potter nemesis Lord Voldemort. "He has demonstrated a pretty consistent bias for big industry, big corporations, polluters and a hostility and hesitancy towards public interest plaintiffs, plaintiffs that use cutting edge science or climate change," Snape told CBC Radio. "We were hoping that [the nominee] would be someone else. He really was the one of the final four that was giving us the most heartburn, and now that has become realized."

But Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, did not share Snape's dire view. "Judge Kavanaugh isn't anti-environmental, but he tends to be anti-agency," Gerrard told InsideClimate News. "He's often struck down regulation that he didn't think Congress had authorized explicitly enough. He reads statutory authority very narrowly, and that is a major concern for things like the Clean Power Plan"—the centerpiece of the Obama administration's climate action plan.

"In effect, his approach to environmental law would make it harder to address current problems so long as Congress remains out of the lawmaking business," Richard Lazarus, an environmental law professor at the Harvard Law School, told The New York Times. "I can't say environmental groups should be celebrating," Lazarus said. However, he added, "I don't think you can look at all these cases and say this is someone who is single-mindedly hostile toward environmental lawmaking."

Indeed, Kavanaugh said this in a hearing about the Clean Power Plan in 2016: "The earth is warming. Humans are contributing. There is a moral imperative. There is a huge policy imperative." He actually called the Clean Power Plan "laudable" before concluding that the EPA should have looked more carefully at its potential economic impacts. "I do not want to diminish EPA's vital public objectives in addressing global warming," he wrote regarding another case in 2013. "The task of dealing with global warming is urgent and important at the national and international level."

Kavanaugh wrote more than 100 opinions during his tenure on the DC Circuit. "Notable among these are a string of cases involving rulings by the Environmental Protection Agency. Kavanaugh has largely, but not always, attempted to rein in Obama-era EPA regulations…," wrote Edith Roberts, editor of SCOTUS Blog.

Of course, Team Trump is touting those instances in which Kavanaugh ruled against federal agencies. "Judge Kavanaugh protects American businesses from illegal job-killing regulation," the White House wrote in an email this week soliciting industry groups' support for his nomination. "Kavanaugh helped kill President Obama's most destructive new environmental rules" and has "led the effort to rein in unaccountable independent agencies."

Still, the question that begs to be asked is what would happen if the Trump administration were to ever take up the business of making "new environmental rules" rather than simply tearing them apart.

As the eastern United States finally got relief from a prolonged heat wave, another heat wave descended on California and parts of the Southwest last Friday and into the weekend, putting more than 25 million people under extreme-heat advisories as temperatures soared into the triple digits in some places. Heat-related deaths in Phoenix have increased so much in recent years that city officials are now testing text alert systems to warn people when temperatures become life-threatening.

In June, a city in Oman endured temperatures that did not dip below 108°F for more than 24 hours, marking the highest daily minimum temperature ever recorded on Earth. Hot nighttime temperatures can be a killer, said Kevin Trenberth, a senior scientist in the Climate Analysis Section at the U.S. National Center for Atmospheric Research. "They are often a more critical factor in heat wave deaths."

Last Saturday and Sunday, record rains in southwest Japan brought floods and landslides that killed more than 200 people, damaged thousands of houses and forced millions of residents to evacuate. "We've never experienced this kind of rain before," a Japanese weather official told the BBC. Japanese broadcaster NHK reported that more than 14 inches of rain fell in a two-hour span on Sunday in the city of Uwajima—about 1.5 times the average monthly rainfall for the whole of July.

Meanwhile, parts of the world's warming oceans and inland lakes and waterways are being overwhelmed with prodigious growth of foul-smelling, sometimes toxic algae and seaweed. Reuters reported that some fisheries in the Caribbean have plummeted due to a proliferation of a sticky, brown algae called sargassum. "The sargassum is a new phenomenon, unprecedented and massive in its scale," said Milton Haughton, executive director of the intergovernmental Caribbean Regional Fisheries Mechanism.

At the same time, scientists warned Monday in Nature Geoscience that emissions of carbon dioxide and methane from warming wetlands and thawing permafrost could push the world to the threshold of catastrophic climate change five years earlier than projected by current climate models





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