If the first day of Brett M. Kavanaugh's hearing in the Senate is any indication, Democratic senators are ready to press President Trump's Supreme Court nominee about his views on a number of high-profile cases on things like abortion rights and gun control.
So far, environmental issues have taken a back seat to those topics. But with several days of testimony from Kavanaugh still ahead of him before the Senate Judiciary Committee, Democrats laid the groundwork for grilling the judge about how much power he thinks the executive branch should have when writing rules meant to stop pollution.
Throughout his time on the U.S. Court of Appeals for the District of Columbia, Kavanaugh tended to take an industry-friendly approach to interpreting enviromental law. Importantly, Kavanaugh only wants to give the government more authority to regulate businesses when Congress clearly states it wants it to be that way.
With that judicial philosophy, according to Democrat Sheldon Whitehouse of Rhode Island, Kavanaugh is exactly the sort of Supreme Court justice that industry wants.
“Lots of big Republican influencers are polluters who like to pollute for free,” Whitehouse told Kavanaugh during the hearing. “Big polluters, clearly, have big expectations for you on their deregulatory effort.”
Whitehouse's office declined to say what the senator will ask Kavanaugh about this week. But in a statement by email, the senator noted that Democrats have not had the chance to review a vast number of documents from the nominee’s time working as a staffer in George W. Bush's White House.
“We may never know which polluters are paying for a multi-million dollar ad campaign to pave the way for his confirmation,” Whitehouse wrote in the email to The Energy 202. “We do know that for heavy-spending polluters, tearing down protections for our environment is a big payback, and all of Kavanaugh’s signaling is that he’s there to help.”
Of course, this is only one point of view from a Democrat opposed to Kavanaugh's nomination.
The judge presented himself during the hearing as an impartial jurist who rules “sometimes for environmentalists and sometimes for coal miners.” And Republicans on the committee defended Kavanaugh by describing him as a judge who simply follows the letter of the law.
“Contrary to the Onion-like smears that we hear outside, Judge Kavanaugh doesn't hate women and children, Judge Kavanaugh doesn't lust after dirty water and stinky air,” said Sen. Ben Sasse (R-Neb.). “No, looking at his record, it seems to me that what he actually dislikes are legislators that are too lazy and too risk-averse to do our actual jobs.”
Since Congress has passed few major environmental laws since the 1970s, presidents have had to use those old statutes to address new challenges such as global warming. That legislative stalemate between Republicans and Democrats has given the courts an increasingly critical role in determining how far those laws reach.
Expect Democrats to highlight the significance of Kavanaugh's pro-business approach when it comes to climate change. Kavanaugh has held that the Environmental Protection Agency does not have the authority under the Clean Air Act to compel companies to curb the emission of carbon dioxide and other greenhouse gases. That put him at odds with former President Obama's administration, which did interpret the law that way and issued carbon-emissions rules for coal-fired power plants before the Supreme Court halted their enforcement.
Last year, for example, Kavanaugh's court ruled against an Obama-era EPA program compelling manufacturers to phase out a particularly potent type of greenhouse gas called hydrofluorocarbons. “However much we might sympathize or agree with EPA's policy objectives,” Kavanaugh wrote, “EPA may act only within the boundaries of its statutory authority.
Another topic Kavanaugh may be pressed on is his insistence the EPA consider the financial impact of its actions. When dissenting in a 2-1 decision upholding the EPA's decision to block a permit for a coal mine in West Virginia due to potential harm to aquatic life, he wrote the agency "never considered the costs to humans."
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— "Overwhelmed" and "exhausted:" A new audit report from the Government Accountability Office found the Federal Emergency Management Agency was overwhelmed last year by the spate of major hurricanes and wildfires, and while it carried out its duties, its resources were “exhausted” once Hurricane Maria hit Puerto Rico. “They were completely overwhelmed from a workforce standpoint,” audit leader and GAO director for emergency management issues Chris Currie told reporters on a Tuesday call, according to The Post’s Joel Achenbach and Arelis R. Hernández. “Once Maria hit, their staff resources were pretty exhausted. Their other commodities and resources were exhausted.”
Some key findings: Some FEMA staff “were not physically able to handle the extreme or austere environment of the territories, which detracted from mission needs” when responding to hurricane recovery in Puerto Rico and the U.S. Virgin Islands. And at one point last October, more than half — 54 percent — of FEMA staff deployed to tasks for which they were not “qualified” according to the agency standards. Many staffers did not speak Spanish, and could not speak with local residents or translate documents.
— Pruitt’s protection not justified: A report from the EPA's inspector general found the agency did not properly assess security threats when it established a round-the-clock protective detail for former administrator Scott Pruitt, according to The Post’s Brady Dennis and Juliet Eilperin. The report concluded that the decision “represents an inefficient use of agency resources” and the agency was not justified in spending nearly $3.5 million on Pruitt’s security. Even with Pruitt having hit the exits, the agency disputed the notion that it lacked justification for the security detail, responding to the internal watchdog's report.
The office also announced Tuesday that it will begin a review of testing of glider vehicles conducted at the agency’s vehicle labs following “two congressional requests.” The inspector general plans to “examine the selection, acquisition and testing of glider vehicles at the EPA’s National Vehicle and Fuel Emissions Laboratory, as well as the EPA’s planning for this testing,” according to a memo. Congressional Republicans were among those who raised concerns about those tests.
— Trump picks physicist who dismisses climate change to join NSC: Trump will name William Happer, an atomic physicist from Princeton who has publicly questioned the mainstream consensus about climate change, to join the National Security Council as an adviser on emerging technologies, CNN reports. Happer, who served in the Energy Department under President George H.W. Bush, told CNN last year that carbon dioxide is not a “pollutant” and that “the temperature is not rising nearly as fast as the alarmist computer models predicted."
— California is burning: And the California Department of Forestry and Fire Protection is struggling to keep up in terms of staffing. “Cal Fire leaders say they cannot remember having so many aircraft grounded during peak fire months because of staffing shortages," the Sacramento Bee reports. "They can call on private companies and federal aircraft to fill in during an emergency, but they acknowledge that the department’s pilot shortfall is straining the fleet." Cal Fire Chief of Flight Operations Dennis Brown predicts 40 more pilots will be needed in the coming years to alleviate the shortage, per the report.
— Storm watch: Tropical Storm Gordon made landfall late Tuesday night just shy of a Category 1 hurricane, landing near the Alabama-Mississippi border. The storm had sustained winds of 70 mph, according to the National Hurricane Center and had already claimed one life, after a tree fell on a trailer in Pensacola, Fla., The Post’s Jason Samenow reports. “Although Gordon is not expected to cause anything approaching the catastrophic destruction of 2017’s major hurricanes," the New York Times reports, "the governors of Alabama, Louisiana and Mississippi have all declared states of emergency and are urging residents not to take the storm lightly."
— Oil company taps former Interior official: Cox Oil Offshore on Tuesday announced it has appointed Vincent DeVito, a former energy counselor to Interior Secretary Ryan Zinke, to serve as its executive vice president and general counsel. Before joining the Interior Department, DeVito worked in the Energy Department and in state energy offices, per a news release. He is just the latest former political official at Interior to walk through the revolving door between industry and government, with former deputy chief of staff Downey Magallanes heading to oil giant BP after backing the department's shrinking of national monuments in Utah.
- The Senate Committee on Commerce, Science, and Transportation holds an executive sessionon various legislative measures and nominations
- The Senate Commerce, Science and Transportation Committee holds an executive session on various legislative measures and nominations.
- The Environmental Protection Agency holds a PFAS community engagement in Leavenworth, Kan.
- House Energy and Commerce Subcommittee on the Environment holds a hearing on perfluorinated chemicals on Thursday.
- The Senate Environment and Public Works holds a hearing on the nomination of Harold B. Parker to be the federal cochairperson of the Northern Border Regional Commission on Thursday.
- The Bipartisan Policy Center and The Hill hold an event on bipartisan climate solutions with Sen. Sheldon Whitehouse (D-R.I.) and Rep. Brian Fitzpatrick (R-Pa.) on Thursday.
- The American Enterprise Institute holds an event on implementing the Paris agreement on Thursday.
- The United States Energy Association holds a membership briefing on Thursday.
- The House Transportation and Infrastructure Subcommittee on Water Resources on Environment holds a hearing on water resources on Friday.