Brett Kavanaugh has made any number of claims that defy belief: that spicy food, and not drinking, caused him to vomit in high school, for instance; or that he called himself a “Renate Alumnius” in his high school yearbook as a tribute to the girl in question, and not as a boast that he’d had sex with her. While such questionable statements set off the b.s. detectors of pretty much anyone who has attended high school, they are hard to definitively disprove. Kavanaugh’s claims about giving environmental issues a fair shake while on the court, on the other hand, can be easily fact-checked against the judicial record. And when they are, they come up short.
When testifying before the Senate Judiciary Committee on September 5, Kavanaugh listed several cases in which he upheld environmental regulations, including “the Natural Resources Defense Council case versus EPA, a ruling for environmentalist groups,” as he put it.
Yet, in that case, which was decided by the D.C. Court of Appeals in 2014, Kavanaugh ruled against three of four challenges brought by the Natural Resources Defense Council and the Sierra Club. The judge rejected the environmental groups’ primary argument that the Environmental Protection Agency’s limits on lead, arsenic, chromium, and soot pollution from cement plants were too weak. He also rejected another legal challenge the groups posed to the EPA’s pollution limits. And Kavanaugh’s ruling also sided with industry in giving cement companies a two-year extension to pollute above the limits that the environmental groups already felt were too weak. It was only on one procedural point that Kavanaugh agreed with environmentalists — one that wasn’t “especially environmental,” according to John Walke, a senior attorney for NRDC, who argued the case in front of Kavanaugh.
Walke was watching the testimony in his office when Kavanuagh began talking about the case in the Senate hearing. “My immediate reaction was, I thought I had misheard him,” said Walke, who directs NRDC’s clean air program. “But as he kept talking, I realized he was talking about my clean air case before him. And then, I honestly could not believe that a federal judge and Supreme Court nominee was misrepresenting my case to U.S. senators in order to bolster his environmental credentials.”
Walke quickly got on Twitter and began countering Kavanaugh’s interpretation of the case. “Judge Kavanaugh ruled squarely against ‘environmentalists’ interests’ on the substance of the weaker toxic pollution limits & the 2-year compliance extension—what mattered most to public health & the environment,” he wrote.
Kavanaugh presented himself to the Senate as a friend of the environment more broadly. “In some cases, I’ve ruled against environmentalists’ interests, and in many cases I’ve ruled for environmentalists’ interests,” he told the members of the Judiciary Committee, in another statement that stretched the truth.
While that characterization went unchallenged by senators, an analysis by the environmental law firm Earthjustice found that of 26 EPA-related cases in which Kavanaugh wrote opinions, the judge came down on the side of rolling back protections for clean air and water 89 percent of the time. Eighteen of those cases dealt with EPA rules on water and air specifically, and in 16 of them, Kavanaugh’s position would have resulted in less protection and more pollution, the analysis found.
