At the conclusion of his visit to Bear Pond in the St. Regis Canoe Area on August 10, U.S. Senator Charles Schumer answered questions from press and local residents who were worried about Federal Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court. Senator Schumer confirmed that Kavanaugh would be bad news for clean air, clean water and public health in the Adirondack Park.
The Senator had come to celebrate Bear Pond’s recovery from acid rain and to warn federal officials not to backslide on clean air rules. The Senate Minority Leader said he was opposed to Kavanaugh’s confirmation.
Kavanaugh was nominated by President Donald Trump to serve in the seat vacated by the retirement of Justice Anthony Kennedy. While few people outside of the federal court system had heard of Kavanaugh, he was familiar to those who have followed federal lawsuits over air pollution such as smog and acid rain.
He has a long and notorious record of siding with polluters instead of their victims, requiring downwind communities in the Adirondacks, and around the Northeast, to pay the price for air pollution created by power companies in the Midwest.
In 2012, while serving on the U.S. Court of Appeals for the District of Columbia Circuit, Judge Kavanaugh struck down the Clean Air Act’s Cross-State Air Pollution Rule. In combination with the Acid Rain Program created in 1995, the Cross-State rule has brought steep reductions in the air pollution that causes acid rain and smog. It is part of the reason Bear Pond is looking healthy again.
The landowner on whose shoreline the Senator stood while addressing the media that day belongs to Dr. Edward Hixon. Hixson is a lifelong conservationist who has served as medic for teams climbing Mt. Everest.
Dr. Hixson told the Senator that Bear Pond was a lovely shade of aqua marine when he first moved there several decades ago. That was because its pH had dropped to 5.0 and very little could live in it. Without plants and algae, it was as clear as gin. Today, with a pH of 6.2 (over 10 times less acidic than in 1994) it is greener and a little murkier. That’s good. It is also full of fish again.
In addition, the Cross-State rule is responsible for preventing up to 34,000 premature deaths each year and for improving air quality for 240 million Americans. The U.S. Environmental Protection Agency says the rule’s public health benefits are more than 100 times higher than its compliance costs. So when Kavanaugh wrote a majority opinion siding with polluters because the costs were too high, the entire regulatory community gasped.
Fortunately, in 2014, six Supreme Court Justices overruled Judge Kavanaugh’s opinion and the Cross-State rule was reinstated. Notably, Justice Kennedy, whom Judge Kavanaugh would replace on the Supreme Court, voted to uphold EPA’s authority to safeguard the nation’s air quality. So replacing Kennedy with Kavanaugh would make the court less environmentally responsible.
Judge Kavanaugh’s decisions reveal a tendency to limit the public’s right to access justice through the courts by adopting obstructive “standing” requirements, while at the same time removing barriers for polluters. By emphasizing standing in air pollution cases, the judge places a significant burden on the pollution victims. Victims must show they are being harmed in some special way, over and above the harm done to other people and to public resources and public welfare. This cuts down the number of potential lawsuits power companies will face over the 34,000 deaths a year they were causing before the Cross-State rule was adopted.
The Cross-State rule is the EPA’s tool for implementing the Clean Air Act’s “good neighbor” policy, which prohibits one state from causing another state to exceed public health standards for smog.
After rejecting Kavanaugh’s decision to vacate the rule, the Supreme Court sent the rule back to Kavanaugh’s court to fix technical issues over the costs of compliance for a handful of the 23 states whose air pollution is regulated by the rule. Meanwhile, he threw out New York’s State Implementation Plan for the 2015 smog standards and rejected a host of others as well. He told EPA to draw up new plans for the states whose plans he tossed. However, EPA’s new conservative leadership is dragging its feet, so we are still awaiting EPA action.
Kavanaugh has been enough trouble for the environment and public health in the federal appeals court. His confirmation would further tip the court into an anti-environmental stance that could harm clean air, clean water and public health for generations.
Photo of West face of the United States Supreme Court building in Washington, D.C. courtesy Wikimedia User UpstateNYer.