Jerri-Lynn here: This post analyzes possible consequences for corporate regulation if the Senate confirms Brett Kavanaugh to sit on the Supreme Court.
While Kavanaugh acknowledges that climate change is occurring, his restrictive views on the authority administrative agencies may wield may lead him to overturn efforts to regulate in this area.
By Sharon Kelly, an attorney and freelance writer based in Philadelphia. She has reported for The New York Times, The Guardian, The Nation, National Wildlife, Earth Island Journal, and a variety of other publications. Prior to beginning freelance writing, she worked as a law clerk for the ACLU of Delaware. Originally published at DeSmogBlog.
As Judge Brett Kavanaugh’s Supreme Court nomination hearings get under way, understanding his appointment’s potential impacts for corporate regulation and the climate means looking back all the way to 1890.
That was when a nearly 50-year stretch known to legal historians as the “Lochner era” kicked off — a time better known in U.S.history as the age of the robber barons.
The Lochner era gets its name from a 1905 Supreme Court case, Lochner v. New York, which threw out state limits on the number of hours bakers could work in a week. This case’s reasoning was later overturned by the U.S. Supreme Court in a 1937 case that rejected a half-century of judicial thinking — doctrines that had led the court to toss out laws governing working conditions, creating food safety standards, and barring child labor.
In 1937, as the Great Depression raged, the Supreme Court faced pressure from President Franklin Delano Roosevelt, frustrated after the Court rejected 11 of 13 early New Deal programs as unconstitutional. The Constitution doesn’t say how many justices are allowed to sit on the Supreme Court — and FDR threatened to add enough justices to change the court’s leanings.
Not long after FDR’s threat, Justices Owen Roberts and Charles Evans Hughes joined majorities that rejected Lochner and found the new National Labor Relations Board constitutional — a move that’s gone down in legal history as the “switch in time that saved nine.” (Nine being the number of justices sitting on the Court.)
During the Lochner era, the Supreme Court followed a “non-delegation doctrine” that required Congress to play an active role in the most minute details of decision-making and policy-setting.
Bringing it back could have huge significance for how the U.S. regulates the environment, food safety, the Internet — and global climate change.
Bringing Lochner Back?
After the Lochner era ended, the Supreme Court allowed Congress, which writes the laws, to delegate the details of rules and regulations to government agencies in the executive branch, which enforces laws. So, for example, the U.S. Environmental Protection Agency (EPA) can decide just how much of a given chemical is safe in a city’s drinking water — and change those rules as new hazards are uncovered — without getting both houses of Congress to sign off on every detail.
Taken to the extreme, uprooting its ability to delegate could require Congress to write or approve every new federal rule and regulation, a herculean task in a country of over 300 million people. The House and Senate’s 535 members would also have to tackle jobs currently performed by dozens of federal agencies like the Food and Drug Administration (FDA), the Federal Communications Commission (FCC), and the Department of Agriculture (USDA).
But there are signs that the Supreme Court might allow the non-delegation doctrine to slip back into the law. In March, the Supreme Court agreed to review a case called Gundy v. United States, limiting its review to non-delegation issues.
And with Justice Kavanaugh shifting the court far to the right, that relatively obscure case might represent a major opportunity for corporations to chip away at the foundations of America’s regulations, including its environmental protections.
“This is a really important sleeper case,” Sean Hecht, a law professor at University of California, Los Angeles told McClatchy in June, before Kavanaugh was nominated on July 9. If the Supreme Court handed down a broad ruling, “[p]arties would feel emboldened to say, you can’t make us do this under the Clean Air Act, or Clean Water Act, or the Endangered Species Act, because Congress wasn’t precise enough in the policy guidance it gave the agency.”
The Gundy case, which involves a dispute over the Sex Offender Registration and Notification Act, directly relates to criminal, not civil law — but legal observers warn that reviving non-delegation in any context could open the doors to hard right-wing judicial activism in much broader contexts.
“There are many on the right that want to upend nearly a century of law,” said Lisa Graves, co-director of the watchdog group Documented and a former Deputy Assistant Attorney General, warning that Kavanaugh’s appointment could kick off a move back towards the Lochner era.
Kochs and Kavanaugh: The Laissez-Faire Link
The Lochner era’s laissez-faire philosophy — a hands-off, “let it be” approach that promotes slashing corporate regulation in the name of limiting government power — is one that many Koch-affiliated organizations and right-wing think tanks share today.
The Federalist Society, whose top donors include David Koch, Charles G. Koch Charitable Foundation, and Koch Industries, according to The Hill, has for years sponsored and hosted debates on reviving the non-delegation doctrine.
Kavanaugh, a long-time Federalist Society member who briefly resigned at the start of his tenure with the G.W. Bush White House Counsel, has remained active at Federalist Society events, though in 2001 he sought to distance himself from the conservative legal group in the press.
“The Federal Society role here is extraordinary,” said Graves. Leonard Leo, who has served for years as the society’s executive vice president, took a leave to advise President Trump on judicial nominees. He helped craft the list used by the Trump administration to decide who to appoint to Supreme Court vacancies.
By speaking at and attending many of the Federalist Society events, Kavanaugh maintained a close connection to the group after he became a judge in D.C.’s U.S. Court of Appeals.
“Judges are like jewels in the crown of the Federalist Society,” Graves said. “In essence, his involvement lends the prestige of his office to that organization.”
When it comes to climate change, Kavanaugh can see that there is a problem. “The earth is warming. Humans are contributing,” he said in 2016. “There is a huge policy imperative. The pope’s involved.”
But in 2016 during oral arguments for a lawsuit against the Clean Power Plan, Kavanaugh’s reasoning against Obama’s signature climate change program took on a Lochner-esque tone as he argued that Congress hadn’t clearly delegated authority for Obama’s EPA to regulate carbon emissions under the Clean Air Act. “Global warming is not a blank check, either, for the President,” Kavanaugh said.
During hearings on his appointment to the D.C. Circuit, Kavanaugh called Lochner a “classic example of judges superimposing their personal views on the decision-making process in an improper manner.”
“Yet after ascending to the D.C.Circuit in 2006, Kavanaugh proceeded to follow the example of the Lochner justices,” Slate reported in July.
“Judge Kavanaugh isn’t anti-environmental, but he tends to be anti-agency,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, told Inside Climate News. “He’s often struck down regulation that he didn’t think Congress had authorized explicitly enough.”
Things Heat Up in Alaska and Maine
The two Republican Senators seen as most likely to shift course on Judge Kavanaugh’s appointment to the Supreme Court are Senators Susan Collins and Lisa Murkowski. They hail from two of America’s northern-most states. And those two northern states, Alaska and Maine, have already begun to feel the consequences of a changing climate.
In Alaska, the climate has been warming so fast, the Washington Post reported in January, that computers rejected data from Barrow, Alaska’s climate monitoring stations because the temperatures were so high that the algorithms assumed something had gone wrong with the monitors (it hadn’t.) Some parking lots and airport runways in the state are now equipped with cooling systems to keep the pavement from buckling as permafrost melts — a problem that’s putting building foundations at risk too.
Meanwhile Maine’s iconic lobsters are under threat not only from ocean acidification, but also from warming seas and invasive marine life. The state’s been experiencing a “marine heatwave” that’s raised ocean temperatures more than 10 degrees above normal levels.
Neither Collins nor Murkowski, who both have broken from party lines in the past, has a stellar track record on climate issues, but polls in their home states have shown strong public support for action.
The impacts of a Supreme Court appointment can be expected to long outlast the Trump administration’s time in office — potentially adding years or decades of delays if a later EPA seeks to take action on the climate.
To some degree, limits on government powers are right in line with a more moderate conservative view.
But the non-delegation doctrine is linked to some of the furthest excesses of unchecked capitalism, Supreme Court justices have pointed out. “Once we start down the road of saying Congress cannot tell even a private agency to go and make some standards, which we all know will be followed, once we start down that road there is no stopping place,” Justice Steven Breyer warned during oral arguments in 2014.
And that would serve the goals of some among the most extreme right-wing activists in the U.S. today. Trump’s former chief strategist Steve Bannon called for the “deconstruction of the administrative state,” the New York Times reported in February 2017.
A full revival of Lochner would go a long way towards achieving that goal — and the consequences for the climate could be dire.