Nobody found it too surprising to learn that Trump Supreme Court nominee Brett Kavanaugh is, when it comes to his feelings on the government, a bit of a crackpot; being a crackpot is the only way you end up on the shortlist of the Federalist Society's list of potential Supreme Court justices most likely to crackpot their way back to an 18th century version of "civil rights," a robber baron-era version of "regulation", and an biblical-era interpretation of what the womenfolk are obliged to abide when the menfolk are in their oak and leather decision-rooms doing the decision-making.
He would appear in temperament to be closest to the current Justice Samuel Alito, perhaps. His record certainly paints him as an eager arsonist seeking to burn down as much of the federal government as can be practically attained, but (and this may be necessary, for an ambitious would-be Supreme Court justice seeking to rise to prominence without attracting an equal share of infamy) without the Scalia-ish insistence on making a loud and showy spectacle of those acts.
It is Kavanaugh's peculiar notions on regulation that threaten to do the most widespread environmental damage, if we are compartmentalizing these things. And Kavanaugh's notion is that government agencies cannot, by themselves, regulate much of anything. Congress can pass laws barring individual dangerous chemicals or stipulating restrictions on their use, to be sure—but cannot delegate a broader authority to federal agencies to do that in the general case, even if Congress passes laws explicitly delegating that authority to those agencies. Kavanaugh has used this rather extremist premise to great effect in not only arguing, in specific, that climate-changing emissions do not count as a federally regulable "pollutant" and thus cannot be curbed or regulated until Congress specifically writes a new law saying so, but as general objection to much of the modern federal framework for regulating environmental dangers, period.
In other cases, however, Judge Kavanaugh went even further than the Supreme Court’s conservative wing was willing to go. In E.M.E. Homer City Generation v. Environmental Protection Agency, he wrote a majority opinion for the D.C. Circuit Court striking down a federal program to regulate air pollution that crossed state boundaries. The Supreme Court later took up the case and overruled him 6-2, with Justice Kennedy and Chief Justice John G. Roberts Jr. voting to uphold the pollution rule.
Kavanaugh's hostility to the premise that federal agencies can craft regulations at all is extreme; in addition to opposing the Chevron standard, the doctrine of deferring to agencies' interpretations of law rather than judicial interpretation when reasonable and possible, he condemns the very premise of congressionally created "independent" federal agencies like the Consumer Financial Protection Bureau, declaring that very independence to be a "significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances."
And the above 6-2 decision rebuking Kavanaugh's nutty anti-regulatory premises becomes a tight-as-a-tick 5-4, if Kavanaugh lands himself his new gig allowing him the opportunity to himself be a final arbiter of what's nutty and what is not.
Again, he would not have landed at the top of the Federalist Society's wishlist if he was not willing to take a bat to, well, federalism. But the repercussions of his stance are especially dire when it comes to environmental protections, consumer protections, and similar checks against corporate abuses of the public that Congress has been unwilling to themselves legislate against for fear of lobbyist-led retaliation, in these egregiously corrupt and money-fueled times. Congress has in these cases managed to partially deflect industry retaliation by writing legislation instead tasking specific federal agencies, like the EPA or Consumer Financial Protection Bureau, with the broader authority to investigate and respond to malfeasance on their behalf; it's not us saying you have to clean up your act, dear corporate crooks—it is those mean fellows over there that make those final decisions.
If Kavanaugh is of the opinion that Congress simply cannot do that, not even if they themselves write the laws giving those agencies that delegated power, preventing those abuses becomes impossible. Congress will not themselves do it because the Supreme Court has ruled that billionaires cannot be prevented from simply buying themselves new legislators who will promptly undo the act; government agencies cannot do it without, according to Kavanaugh, the precise sort of detailed, line-by-line orders that Congress cannot stomach giving in the first place. That is a prescription for a new era of corporate piracy—and yet another victory for corporate polluters insisting that the warming of the planet is not their fault, and that even if it is it would be wrong to cut into their profits to prevent such a thing. This is called individual liberty, which would be a good name for a yacht once the majority of Florida has gone permanently underwater.
