Judge Brett Kavanaugh tried to buff up his green bona fides during his third day of confirmation hearings. But he was quickly rebuffed by the very environmentalists with whom President Trump's Supreme Court nominee claimed he once sided.
Testifying in front of the Senate Judiciary Committee on Wednesday, Kavanaugh justified his record of reining in environmental regulations as an overall even-handed approach — occasionally favoring industry and occasionally favoring environmentalists.
"I'm a pro-law judge," Kavanaugh said, "and in an environmental cases, in some cases I've ruled against environmentalist interest and in many cases I've ruled for environmentalist interest."
Kavanaugh's defense comes as Democrats step up their criticism of the the conservative judge for tilting the scales in favor of big industry. They are attempting to cast Kavanaugh's environmental record as yet another reason, alongside abortion and guns, to oppose his nomination. As the hearing continued Thursday, Democratic senators on the Environmental and Public Works Committee held a press conference on Capitol Hill highlighting what they say Kavanaugh "falsely claimed" about his environmental record.
As an example of his environmentally friendly rulings, Kavanaugh offered a 2014 case called Natural Resources Defense Council v. Environmental Protection Agency during the hearing.
In a 3-0 decision written by Kavanaugh, the U.S. Court of Appeals for the District of Columbia ruled that manufacturers of cement could not get out of complying with EPA restrictions on emitting soot, lead, arsenic and other pollutants if their pollution-control equipment accidently breaks.
"That was a big money case," Kavanaugh said.
But some outside legal experts, along with many environmental groups party to the suit, disagree with how Kavanaugh characterized that lawsuit, saying the judge agreed with the environmentalists on just a procedural matter.
One of those critics is John Walke. As one of the lawyers that NRDC, an environmental nonprofit, sent to Kavanaugh's court to argue its case, he is in a position to know.
Well, that was interesting. This morning, Judge Kavanaugh mischaracterized one of my cases before him, offering it as an example of him ruling “in favor of environmentalists’ interests”—despite him ruling AGAINST @NRDC & @Sierra Club on 3 of 4 issues.— John Walke (@jwalkenrdc) September 5, 2018
A thread. 1/
In a lengthy Twitter thread, Walke said Kavanaugh ignored the rest of the ruling during the confirmation hearing. The court rejected three of the four arguments the environmental groups made to it concerning the cement rule issued under President Barack Obama, including one that it was simply "unlawfully weak."
“On the core environmental safeguards and issues in the rule, it was a negative ruling for environmentalists' interests," Walke said in an interview with The Post. "He mentioned none of that. In fact, by omission, I felt like he was mischaracterizing the central gist of his ruling.”
Another party with NRDC in the case, the Sierra Club, agrees that case has little to offer environmentalists. "In fact, that has been true of the overwhelming majority of his writings and his rulings throughout his career," said Courtney Hight, director of the organization's democracy program.
Columbia environmental law professor Michael Gerrard added that it was "a stretch to call this a pro-environmental decision."
"Kavanaugh's decision sided with the cement industry on all the substantive issues regarding emissions limitations, and with NRDC on one procedural issue," Gerrard said.
During his 12-year tenure on the D.C. Circuit, Kavanaugh has followed a judicial philosophy of giving agencies more regulatory authority only when Congress has clearly written that is what it want. In practice, that means the judge was often suspicious of Obama-era EPA regulations that attempted to tackle new environmental problems, like climate change, with old environmental laws, many of which date back to the 1970s.
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— Round up the usual suspects: Trump's various environmental ministers are all denying that they are the author of the scathing op-ed in the New York Times that described the president as "impetuous, adversarial, petty and ineffective." Acting EPA administrator Andrew Wheeler, Energy Secretary Rick Perry and Interior Secretary Ryan Zinke each issued statements more emphatic than the last.
I am not the author of the New York Times OpEd, nor do I agree with its characterizations. Hiding behind anonymity and smearing the President of the United States does not make you an "unsung hero", it makes you a coward, unworthy of serving this Nation.— Rick Perry (@SecretaryPerry) September 6, 2018
Leaders like @POTUS charge up a hill under fire, not cower in a fox hole. Whoever this author is should be embarrassed at both their dishonesty and their cowardice. I proudly support @realDonaldTrump and work every day to advance our policies for the American people. https://t.co/bGfVRVoOd8— Secretary Ryan Zinke (@SecretaryZinke) September 6, 2018
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— Alabama residents clean up after Tropical Storm Gordon: