The Washington PostDemocracy Dies in Darkness

The Energy 202: Don't forget about Kavanaugh's environmental record


with Paulina Firozi


The confirmation of Judge Brett Kavanaugh to the Supreme Court seems likely to hinge on how honest a group of swing senators feel the judge was when he testified last week about an allegation that he sexually assaulted Christine Blasey Ford when he was in high school. The hearing riveted the nation, reopened calls for a change in our culture around sexual assault and consent and ripped an already fractured nation apart anew. 

Lost, it seems, in the public debate around Kavanaugh is why President Trump nominated him in the first place: his judicial record.  Should Kavanaugh be confirmed, the change in the composition of the court could have a profound effect on the literal makeup of the air we breathe. Senate Republicans have scheduled a key procedural vote on his nomination for today at 10:30a.m.

Unlike many elected Republicans, Kavanaugh recognized the reality of man-made climate change during his time on the bench in the U.S. Court of Appeals for the District of Columbia. "The earth is warming," he said two years ago. "Humans are contributing."

However, in his opinions, the judge has been stingy in doling out more authority to the Environmental Protection Agency to address concerns about climate change, believing that government agencies should only have powers explicitly given them by Congress. And lawmakers haven't passed any law that directly attempts to curb greenhouse-gas emissions. Most of that action, to the chagrin of Republicans, took place within the executive branch under President Barack Obama.

But the courts, including the one on which Kavanaugh sits, haven't always allowed the Democratic administration to implement regulations  aimed at mitigating global warming. As recently as last year, for example, Kavanaugh ruled against an Obama-era effort at the EPA to rein in emissions of some of the most potent climate-warming gases, called hydrofluorocarbons.

A number of similar cases probably will come before the high court during the 53-year-old's long tenure there, if he is approved by the Senate. Attorney generals from blue states have challenged the Trump administration's rollback of the Clean Power Plan, Obama's linchpin effort to curb carbon emissions from the electricity sector. And more than a dozen states have also sued the Trump administration over the rollback of clean-car rules meant to reduce the transportation sector's climate impact.

Those, or other cases regarding rollbacks of Obama-era rules, could end up before Kavanaugh on the high court. For years, Justice Anthony Kennedy, who Kavanaugh would replace, has occasionally sided with the court's liberals on environmental law. He provided a crucial swing vote in a 2007 decision to give the EPA the power to regulate greenhouse-gas emissions in the first place.

Kavanaugh, vetted and approved by the conservative Federalist Society, is unlikely to play the same role as the court's middleman.

And his track record shows that the legal framework around climate change could change significantly because of it.


— Zinke goes to Montana: Interior Secretary Ryan Zinke is set to travel to his home state of Montana where he will approve a proposal to block new mining claims on public lands near Yellowstone National Park, the Associated Press reports. A department spokeswoman told the AP to expect a “major announcement” about conservation.

— Interior adopts an “open science” policy: Meanwhile, Interior has quietly implemented a new science policy that prioritizes “publicly available, reproducible, peer-reviewed” science when it comes to making decisions in the agency, narrowing the scope of published studies it can use and “putting some long-established environmental research at a disadvantage,” BuzzFeed News reports. The decision echoes similar efforts at Trump's EPA to limit the use of science relying on private data, which has earned the scorn of environmental and public-health advocates. 

— “Not just about the Chinese or the Russians or the Iranians": Energy Secretary Rick Perry expressed what he called a “healthy concern” for cyberattacks on the nation’s energy grid during remarks at the Atlantic Festival in Washington. He said he is worried “not just about the Chinese or the Russians or the Iranians hacking in" to break transmission lines and pipelines, the Washington Examiner reports. “We have some incredibly bright men and women working in our labs that are hand-in-glove with the private sector,” he said. 

— Top Trump aide calls for more pipelines: At the same time, Trump’s top economic adviser Larry Kudlow said building more pipelines will be a priority for the president next year. “We need infrastructure, including pipelines,” Larry Kudlow said at an Economic Club of Washington event, the Hill reports. “We need east to west, we need west to east.” Kudlow noted that the growing natural gas industry in particular needs more conduits for delivering fuel to buyers. 

— Trump administration pushes to ease rollout of driverless cars and trucks: The administration is adding trucks to its driverless vehicle policy to now say it will “no longer assume” a commercial vehicle driver has to be human or that anyone needs to be in the cab of a truck, The Post’s Michael Laris reports. In general, the administration "said it would work to ease the federal process for exempting trucks and other vehicles from existing safety standards that might inhibit the use of automation."


— Why does the Pentagon want an insect army?: The Defense Department is studying whether it can use insects as part of a biological army to protect plants during an agricultural emergency. “The bugs would carry genetically engineered viruses that could be deployed rapidly if critical crops such as corn or wheat became vulnerable to a drought, a natural blight or a sudden attack by a biological weapon,” The Post’s Joel Achenbach reports. But scientists are skeptical. In an article published in the journal Science, a team of scientists and legal scholars say such a program “may be widely perceived as an effort to develop biological agents for hostile purposes and their means of delivery.”

— Rare fish pulled back from edge of extinction: The U.S. Fish and Wildlife Service has recommended reclassifying the Colorado River fish from endangered to threatened, “the second comeback this year for a species unique to the Southwestern U.S.,” the Associated Press reports. Nonnative predators and habitat disruptions reduced the fish's population to about 100 in the 1980s, but now "numbers have bounced back to between 54,000 and 59,000."

— Hurricane categories are often misleading: And hurricane specialist Bryan Norcross outlines ideas in a Post story for how to better communicate hurricane risk. They include  scrapping the word “major” from the hurricane lexicon and developing an alert system for extreme flood risk. (The Saffir–Simpson scale that classifies hurricanes from Category 1 to 5 measures just wind, not water.)

— FEMA frenzy: Meanwhile, Democratic Sens. Richard Blumenthal of Connecticut and Elizabeth Warren of Massachusetts wrote a letter to the Department of Homeland Security’s internal watchdog calling for an investigation into contracts awarded to inexperienced companies to help with hurricane recovery in Puerto Rico, McClatchy reports. The letter follows another report from McClatchy that found the Federal Emergency Management Agency awarded multimillion-dollar contracts to companies that had not previously worked with the agency nor had direct experience doing the work they were being contracted to do.


— Musk mocks SEC: Tesla chief executive Elon Musk taunted the Securities and Exchange Commission in a Thursday tweet, days after reaching a settlement following an SEC lawsuit against the company’s chief executive:

“The mocking tweets again raised doubts that the company could rein in its eccentric celebrity billionaire, who pushed the company further into chaos in August when he tweeted that he had the 'funding secured' to take the electric-car company private,” The Post’s Drew Harwell and Renae Merle report.

— Coal-country reporter named "genius": Ken Ward Jr., a longtime investigative reporter for the Charleston Gazette-Mail, has been awarded a MacArthur Fellowship, known as the “genius grant,” the only journalist in this year’s group of 25 honored fellows. Ward was selected for “revealing the human and environmental toll of natural resource extraction in West Virginia and spurring greater accountability among public and private stakeholders,” according to the foundation’s website.



  • The National Academies of Sciences, Engineering, and Medicine holds a webinar that includes a briefing from the Energy Department’s Acting Principal Deputy Assistant Secretary Mark Gilbertson on Friday.

— While fall is delayed in the East, it won’t be denied: The Post’s Jason Samenow points to the crisp autumn weather in the Mountain West, where colorful foliage has already exploded.

Justin McFarland captured footage of autumn's changing leaves in Ogden Valley, Utah, on Sept. 29. (Video: Justin McFarland via Storyful)