Many laws in the United States are famously large. It’s not unusual for bills to run to hundreds, or even thousands, of pages as they attempt to deal with details and possibilities. And still, the regulations that result from a bill can be even longer—much longer. Because they have to be. No bill, no matter how well thought out, can anticipate every possibility, or how markets, technology, and new information will alter the intent and execution of a piece of legislation.
Other countries actually make a very different calculation. Canadian bills, for example, are famously short. Federal and regional authorities are allowed to expand on the core of bills through regulations that are easier to alter and adjust to changing positions. By baking so much of requirements directly into bills, the United States can make legislation both rigid and, perversely, create regulations that are even more complicated. Much of the text in many pieces of legislation does nothing more than describe the location of some tiny fragment of text in another piece of legislation that is being altered.
Regulations—often cited as if they represent the heavy boot of government directed in some uniform, uncaring way—actually represent a much more flexible, more responsive, and more readily addressed way of fleshing out how the words of legislation impact the real world. Or they can, when regulators are allowed to regulate.
Part of the right-wing push for judges who take a “conservative” view of the law and only “rule on balls and strikes” means that those judges often demean or discredit regulations. By insisting on an approach that if something isn’t explicitly written out in the original bill, it can’t be supported by regulations, right-wing judges accomplish two goals: They weaken existing legislation, and they make it much more difficult to construct new legislation.
That approach has a powerful impact on environmental law, which is entirely dependent on information collected through science. A “just the bill” approach limits environmental law so that it can address new studies showing that a class of pesticides is more dangerous than expected, or that the safe level of lead in drinking water is even lower than we thought, or that carbon in the atmosphere is having an effect on the climate that is damaging to the nation and the world.
And, as Inside Climate News points out, that’s exactly the approach being followed by Supreme Court nominee Brett Kavanaugh.
"Judge Kavanaugh isn't anti-environmental, but he tends to be anti-agency," said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. "He's often struck down regulation that he didn't think Congress had authorized explicitly enough. He reads statutory authority very narrowly and that is a major concern for things like the Clean Power Plan," President Barack Obama's signature climate initiative.
It’s very easy for judges like Kavanaugh to claim they are not “anti-environmental,” but as long as they demand that legislation cover every aspect of the environment, that’s the outcome of how they rule in court. For environmental legislation to work at all, it has to include the authority to adapt to new information as it appears. Otherwise, legislation is not only limited and ineffective, it’s tough to get a bill passed at all when it has to include every compound to be covered, every health concern, every permissible value.
The approach of “the bill, and only the bill” allows conservative judges to insist they are upholding the law and taking a “craftsmanlike” approach to the bench, rather than their liberal colleagues who are “making the law,” often by simply upholding the ability of agencies to make reasonable and necessary regulations based on new information and the results of ongoing studies. It’s a carefully fashioned position in which conservatives one again claim to be following the letter of the law, while disregarding intent.
Kavanaugh ... wrote the majority opinion last year striking down another important Obama climate rule—EPA's regulation of HFCs, potent greenhouse gases used in cooling—as outside the agency's authority under the Clean Air Act.
Kavanaugh has been particularly aggressive in going after regulations based on the Clean Air Act. That legislation, written in 1970 and last amended in 1990, could not have anticipated everything we’ve learned since that time, but was explicitly written to reduce pollution and environmental threats. It’s proven not only effective, but cost-effective. The Clean Air Act ushered out lead in gasoline, all but eliminated the clouds of smog hovering over American cities, saved eastern forests from the devastation of acid rain, and has protected millions of Americans from the health effects of everything from nitrates in the air to mercury in the sea.
But Kavanaugh has already demonstrated his disdain for the bill.
Kavanaugh articulated his narrow reading of the law during oral arguments in September 2016 on the Clean Power Plan. Kavanaugh said the Clean Air Act was "a thin statute" to support the rule, likening the program for reining in carbon emissions from electric power plants to President George W. Bush's post-9/11 move to detain a suspected enemy combatant without due process—an effort that the Supreme Court ruled unconstitutional.
The reason the Clean Power Plan was built on the back of this “thin statute” is because in 2007, the Supreme Court ruled that CO2 and other greenhouse gases were subject to EPA regulation under the Clean Air Act. The Clean Power Plan grew out of that court ruling, one that required the EPA to produce a plan to deal with this threat to the health and well-being of Americans, as the Clean Air Act required.
But we don’t have to guess how this interpretation would change if Kavanaugh were involved. Because he’s already spelled it out.
"EPA's well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate," Kavanaugh wrote. "... Congress's failure to enact general climate change legislation does not authorize EPA to act. Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change."
Kavanaugh is ignoring that the agency acted at the express direction of the Supreme Court. The EPA had not gone rogue.
But under a strict literalist interpretation, it will go useless. Which is exactly what Kavanaugh’s supporters want.