You find an appeals court judge so dismissive of the most fundamental rules of judicial restraint that he dares to throw out regulations on the basis of concerns never raised during the rule-making process or in the initial court appeal.
Kavanaugh offers two reasons for sending the EPA back to the drawing board.
The first is that the agency had required states to come up with implementation plans for curbing cross-border pollution before it gave them the yardsticks necessary to evaluate such plans, as required by the law. The only problem is that the Clean Air Act makes no mention of such yardsticks or any obligation on the part of the EPA to provide them. Indeed, the only reason the EPA even came up with those yardsticks is that it needed them to design a federal implementation plan after 26 states failed to meet the statutory deadline for coming up with credible plans. This alleged violation of cooperative federalism turns out to be a figment of Kavanaugh’s imagination.
Kavanaugh’s other grounds for blocking the regulations is that they might someday require some state to eliminate more interstate pollution than it produces. I won’t bore you with the tortured logic that led Kavanaugh to this conclusion other than to point out that, in 60 pages, he wasn’t able to cite a fact or a study or even an example of a single state where this over-regulation was likely to result. As it happens, the EPA had looked into that possibility and concluded that it would be “extremely unlikely.”
This is precisely the kind of “judicial engagement” that we have come to expect from Kavanaugh, who was one of Ken Starr’s loyal lieutenants in the effort to impeach President Bill Clinton, who rushed to Florida after the 2000 election as part of the Bush legal team and who helped to win appointment of fellow members of the Federalist Society to the bench while working in the Bush White House. For all his intelligence, Kavanaugh is nothing more than a partisan shock trooper in a black robe waging an ideological battle against government regulation.
It is a hallmark of “conservative” judges that they genuflect before the tabernacle of judicial restraint even as they throw themselves lustily into pit of judicial activism. So it was with Kavanaugh, who in his opinion takes the rather unusual step of listing by name and citation all the recent regulations that his court has not thrown out on appeal. Perhaps the judge doth protest too much.
What Kavanaugh fails to mention is that this is the same court that last year struck down the regulation that would allow shareholders the right to nominate directors of the companies they own — a regulation that Congress expressly ordered the Securities and Exchange Commission to promulgate in the wake of the financial crisis.
It is the same court that this summer struck down a regulation by the Food and Drug Administration requiring cigarette companies to include graphic warnings against smoking on each pack in addition to the traditional verbal warning. In that case, Judge Janice Rogers Brown, another Federalist Society libertarian, declared that the public health experts at the FDA were simply wrong in concluding that graphic warnings would have some additional impact.
And it is the same court that is almost certain to rule on a case filed last week by the Chamber of Commerce and the American Petroleum Institute against an SEC regulation — also explicitly ordered up by Congress — that would require public companies to disclose all payments to foreign government for rights to develop oil, gas and mineral resources. The chamber and the oil companies argue that such “required speech” violates their First Amendment rights.
The prospect that some balance might be restored to the nation’s second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit. The only hope now is that Chief Judge David Sentelle and some of the court’s more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.