August, 14 2018, 12:00am EDT
For Immediate Release
Contact:
Phil LaRue, Earthjustice, (202) 667-4500 x 4317, plarue@earthjustice.org
25 Environmental, Advocacy Organizations Oppose Nomination of Judge Brett Kavanaugh in New Letter
Groups highlight nominee’s record of favoring big polluters, diminishing access to courts for communities, politicizing federal agency actions
WASHINGTON
In anticipation of the start of hearings for Supreme Court nominee Judge Brett Kavanaugh will begin on September 4, 25 of the nation's leading environmental, legal, and advocacy organizations sent a letter to the Senate Judiciary Committee announcing their opposition to Judge Kavanaugh's nomination.
In the letter, the organizations contend that Judge Kavanaugh's "lengthy record on the federal bench exposes him as an activist judge who has used cases to effectively rewrite statutes," often stacking the deck in favor of wealthy and powerful corporate polluter interests against communities impacted by toxic wastes, loose emission standards, dangerous petrochemical facilities, and pipelines. The signing organizations also note the historic lack of transparency in the nominating process, with hundreds of thousands of pages relating to Judge Kavanaugh's service in the Bush White House still inaccessible to Senators and the public.
Click here to read the full text of the environmental community's letter to the Senate Judiciary Committee opposing Judge Kavanaugh or continue reading below:
Alaska Wilderness League * Bold Alliance * Center for Biological Diversity
Clean Water Action * Climate Hawks Vote * Defenders of Wildlife * Earthjustice
Endangered Species Coalition * Environmental Working Group * Friends of the Earth
Green For All * GreenLatinos * Greenpeace USA * Hip Hop Caucus
Hoosier Environmental Council * Indivisible * League of Conservation Voters
National Lawyer Guild Environmental Justice Committee * National Lawyers Guild
Oil Change International * Sierra Club * Southern Utah Wilderness Alliance
The Wilderness Society * Waterkeeper Alliance * WE ACT for Environmental Justice
August 10, 2018
The Honorable Chuck Grassley, Chairman The Honorable Diane Feinstein, Ranking Member
Senate Committee on the Judiciary Senate Committee on the Judiciary
United States Senate United States Senate
Washington, DC 20510 Washington, DC 20510
RE: Environmental Groups Oppose the Supreme Court Nomination of Judge Brett Kavanaugh
Dear Chairman Grassley and Ranking Member Feinstein:
The undersigned environmental groups write today on behalf of our millions of members and supporters to express our strong opposition to the confirmation of D.C. Circuit Judge Brett Kavanaugh to a lifetime seat on the United States Supreme Court. Judge Kavanaugh is an unacceptable choice for the Supreme Court, and we urge the Senate to reject his nomination.
Judge Kavanaugh's lengthy record on the federal bench exposes him as an activist judge who has used cases to effectively rewrite statutes, creating new obstacles for agency regulation and scuttling protective regulatory outcomes. His hundreds of judicial opinions and legal writings reveal a judicial philosophy that is hostile to the power of government (especially agencies like the Environmental Protection Agency), and that values corporate profits over people and the health of the public. Moreover, Judge Kavanaugh's decisions reveal a tendency to limit the public's right to access justice through the courts (such as by adopting obstructive "standing" requirements), while at the same time removing barriers for polluters. As a result, a Supreme Court informed by Judge Kavanaugh's brand of judging would mean that courthouse doors will often be closed to people seeking to protect the air they breathe, the water they drink, and the planet on which they live. At a time when too many communities of color bear a disproportionate impact from toxic wastes, loose emission standards, dangerous petrochemical facilities and pipelines placed in their communities, we need a Supreme Court Justice that will combat environmental racism and fight for environmental justice for all, regardless of race, ethnicity, national origin, citizenship status, or income - not someone who will bar the courthouse doors on them.
The stakes for the current Supreme Court vacancy could not be higher. United States Supreme Court Justices do not simply decide cases; they determine whether and how the law works, and for whom. They define what the law means for generations to come, and the lower federal courts are bound to follow the precedent they set. An appointment of a new Justice affects the very nature of our democracy, fundamentally defining the landscape of American law.
Who serves as a Supreme Court Justice is among the most profoundly important choices we make as a nation, and one of the most solemn duties that our constitution entrusts to the U.S. Senate. In carrying out that duty, is it incumbent on the Senate to carefully, and thoroughly, scrutinize every nominee, to thoughtfully consider every aspect of his or her judicial record and legal philosophy, and to ensure a robust, fully informed, and transparent confirmation process. The integrity of our system of laws depends on vetting that is both open and honest. In this regard, we urge the Senate to demand all pertinent records from Judge Kavanaugh's years as a political lawyer in the George W. Bush White House (as provided under the Presidential Records Act), and fully consider these materials before proceeding with confirmation hearings. In the end, a nominee to the Supreme Court should be rejected unless he or she is willing to uphold the values, protect the rights, and serve in the interests of the American people - not just corporations, the wealthy, and the political elites.
I. Judge Kavanaugh's Environmental Record Results in Dirtier Air and Water
In key cases, Judge Kavanaugh has backed the right of corporations to pollute the air and water over the public's right to breathe clean air, drink clean water, and live in safe communities.
As shown in dissents written by Judge Kavanaugh in White Stallion1] and Mingo Logan,[2] he reads burdensome obligations into the Clean Air Act and the Clean Water Act that the statutes do not include in their text. For example, in White Stallion, he argued that the EPA could not even consider limiting toxic mercury pollution from power plants without first evaluating the cost to the power companies. And in Mingo Logan, he argued that before vetoing a permit that would have allowed coal companies to dump toxic mining wastes into public waterways, EPA should have considered the cost to coal companies. In both of these cases, he invented the requirement to consider costs to industry where Congress did not include that requirement, while at the same time seeking to force the EPA to ignore important real-world benefits - all in order to stack the deck in favor of the outcomes desired by corporate polluters. This tendency to read into a statute the requirement to consider costs to the corporate elites - while ignoring benefits to the environment, and improvements in the health of children, families, and the American public - not only usurps Congressional authority; it puts our health and well-being at risk.
Several of Judge Kavanaugh's decisions would significantly reduce agency power to protect public health, by recrafting statutes to eliminate authority that Congress has given agencies. For example, his narrow interpretation of the Clean Air Act expressed in EME Homer City[3] (an interpretation later overturned by the Supreme Court) would have severely constrained EPA's ability to protect the people in downwind states from pollution emanating from upwind sources. His interpretation in the Mexichem[4] case prevented the EPA from requiring replacement of a harmful chemical substitute for chlorofluorocarbons. His narrow reading of the phrase "air pollutant" in Coalition for Responsible Regulation[5] could undermine the regulation of greenhouse gases under the Clean Air Act.
His judicial writings also reveal his anti-regulatory approach to evaluating whether an agency action is appropriate under the relevant statute. In cases that raise questions about whether an agency has acted within the scope of its regulatory authority, Judge Kavanaugh favors a deeply subjective "common sense" test - where the statute means whatever he thinks makes sense. Rather than requiring an agency to fully divulge and explain its interpretation of a law that Congress has entrusted it with administering, requiring notice and opportunity for public comment on such interpretation, and then giving special consideration to the agency's conclusions, Kavanaugh would have judges simply impose their own, "common sense," ad-hoc "best reading of the statute."[6] When Judge Kavanaugh has utilized this approach, his "best reading" has been in service of his inclinations toward limited federal authority to regulate, not in the best interest of achieving Congress' protective aims under the relevant statutory program. For example, in his dissent in US Telecom Ass'n v FCC, [7] Judge Kavanaugh outlined a novel "major questions" doctrine that he would have used to reject the FCC's rational interpretation of legislative language and thereby undermine its "net neutrality" rules that are intended to protect consumers. As a Supreme Court Justice, we could expect more of the same, and such an ad-hoc approach to statutory interpretation could ultimately increase regulatory uncertainty and create a perverse incentive for agencies to under-regulate in the first instance.
II. Judge Kavanaugh Politicizes Agency Decision-Making Processes
Judge Kavanaugh's record demonstrates a belief that federal agencies should be more inherently political, which would compromise both the integrity and continuity of their decision-making. He has argued that all federal agencies should operate directly under the political thumb of the President, and should function merely as political extensions of executive branch policy-making. He believes that any degree of separation from direct presidential control is unconstitutional.
In Free Enter. Fund,[8] Judge Kavanaugh's dissent argued that the establishment of the Public Company Accounting Oversight Board, an independent agency, violated separation of powers principles because the board's members are insulated from "at will" presidential removal. Application of this legal principle would make all agencies more political, would increase regulatory uncertainty, would undermine policy continuity, and would destabilize decision-making related to important issues of safety, economic stability, consumer protection, public health, and the environment. Part and parcel to this extreme view of separation of powers, Judge Kavanaugh believes that sitting Presidents are all but immune from the legal consequence of their actions while they are in office - effectively rendering them constitutionally above the law.
III. Judge Kavanaugh's Corporate-serving Double Standard Blocks Access to Courts
One of the most troubling judicial philosophies revealed by Judge Kavanaugh's decisions is his limited view of the rights of ordinary people and public interest groups to access our court system, and his contrastingly permissive view of corporations' right to do so. Critical public health and environmental laws would have little power and meaning in practice if the public cannot get into court to enforce them.
For example, in Grocery Mfrs. Ass'n v. EPA[9] Judge Kavanaugh argued in dissent for giving processed-food manufactures standing to challenge EPA's approval of certain ethanol-containing gasoline blends based solely on the mere chance of increased corn prices, even without quantification of the speculative economic injury. Conversely, in Public Citizen, Inc. v. National Highway Traffic Safety Admin,[10] Judge Kavanaugh ruled against the public interest group and its members' right to be in court to challenge the adequacy of vehicle tire-safety standards on behalf of highway drivers. He did so because Public Citizen did not demonstrate "with certainty" that its members would suffer some particularized and currently identifiable harm other than an increased risk from more severe accidents.
Judge Kavanaugh has a troubling pattern of siding with corporations, the wealthy, and the powerful while erecting barriers for those defending the health, safety, and well-being of the American people. It is essential that whoever occupies a seat on the Supreme Court upholds the right of access to the courts for all, and honors the constitutional obligation to provide an impartial check on the power of Congress and the President.
Conclusion
Judge Kavanaugh's approach to the law threatens key elements of environmental and public health protections, and makes it harder for people to hold the government and big corporate polluters accountable. His confirmation to the United States Supreme Court would create a deeply conservative majority that would tip the scales of justice and the law further away from the people's rights and more towards corporate control of our democracy. We strongly oppose Judge Kavanaugh as a nominee and assert that careful scrutiny of his record reveals a predisposition to subordinate the rights of people to the interests of corporate profit making. These qualities in a Supreme Court Justice would threaten the health and well-being of children, families, workers, and communities, and undermine efforts to protect the ecosystems, natural resources, and global climate systems upon which we all rely. Accordingly, we strongly urge you to reject his nomination and vote against his confirmation.
Sincerely,
Alaska Wilderness League |
Bold Alliance |
Center for Biological Diversity |
Clean Water Action |
Climate Hawks Vote |
Defenders of Wildlife |
Earthjustice |
Endangered Species Coalition |
Environmental Working Group |
Friends of the Earth |
Green For All |
GreenLatinos |
Greenpeace USA |
Hip Hop Caucus |
Hoosier Environmental Council |
Indivisible |
League of Conservation Voters |
National Lawyer Guild Environmental Justice Committee |
National Lawyers Guild |
Oil Change International |
Sierra Club |
Southern Utah Wilderness Alliance |
The Wilderness Society |
Waterkeeper Alliance |
WE ACT for Environmental Justice |
Earthjustice is a non-profit public interest law firm dedicated to protecting the magnificent places, natural resources, and wildlife of this earth, and to defending the right of all people to a healthy environment. We bring about far-reaching change by enforcing and strengthening environmental laws on behalf of hundreds of organizations, coalitions and communities.
800-584-6460LATEST NEWS
Watchdog Urges FEC to Investigate Trump Campaign Over Scheme for Legal Fees
"By not disclosing the vendors that actually provided legal services, the Trump-affiliated committees effectively blocked the public from knowing which attorneys and firms are being paid—and how much."
Apr 24, 2024
A campaign finance watchdog on Wednesday filed a Federal Election Commission complaint accusing former President Donald Trump's 2024 campaign, affiliated political groups, and an accounting firm of violating U.S. law in a scheme "seemingly designed to obscure the true recipients of a noteworthy portion of Trump's legal bills."
The Washington, D.C.-based Campaign Legal Center (CLC) said that "evidence appears to show an illegal arrangement between several Trump-affiliated committees and a compliance firm named Red Curve Solutions that is designed to obscure the identities of those providing legal services and how much they are being paid."
"Voters have a right to know how the presidential campaigns and other committees supporting presidential candidates spend their money."
CLC alleges that the Trump campaign, Trump's political action committee (PAC) Save America, and three affiliated organizations "violated federal reporting requirements based on a scheme in which the committees reportedly paid over $7.2 million—described as 'reimbursement for legal' costs or expenses"—to Red Curve.
The watchdog also said that Red Curve appears to be "making or facilitating illegal contributions that violate either federal contribution limits or the prohibition on corporate contributions."
According to CLC:
Red Curve is a domestic limited liability company that offers compliance and FEC reporting services but does not appear to offer any legal services. It is managed by Bradley Crate, who also serves as the treasurer for each of the five Trump-affiliated committees concerned in this complaint, as well as over 200 other federal committees.
According to filings with the FEC, Red Curve appears to have been fronting legal costs for Trump since at least December 2022, with Trump-affiliated committees repaying the company later. This arrangement appears to violate FEC rules that require campaigns to disclose not only the entity being reimbursed (here, Red Curve) but also the underlying vendor. By not disclosing the vendors that actually provided legal services, the Trump-affiliated committees effectively blocked the public from knowing which attorneys and firms are being paid—and how much they are being paid—through this arrangement.
"Voters have a right to know how the presidential campaigns and other committees supporting presidential candidates spend their money," CLC senior director of campaign finance Erin Chlopak said in a statement. "When campaigns and committees obscure that information from the public, not only do they make it difficult to determine if the law has been violated, but they deny voters the ability to make an informed choice when casting a ballot."
"The steps taken by the Trump campaign, its affiliated committees, and Red Curve Solutions concealed information about how campaign funds were used to pay former President Trump's legal expenditures, including the amounts and ultimate recipients of these expenditures—and the FEC must investigate immediately," Chlopak added.
Trump—who is the presumptive 2024 GOP presidential nominee—faces 91 federal and state felony charges related to his role in the January 6 insurrection and his organization's business practices. He is currently on trial in New York for allegedly falsifying business records related to hush money payments to cover up sex scandals during the 2016 election cycle. The twice-impeached former president has been open about his use of campaign donations to pay his legal costs.
The new CLC filing comes a day after the watchdog filed separate FEC complaints urging investigations into a pair of Trump-affiliated "scam PACs," which "pretend to fundraise for major candidates or issues while secretly diverting almost all of their donors' money back into fundraising or the fraudsters' own pockets."
Keep ReadingShow Less
'One Step Closer': Arizona House Votes to Repeal 1864 Abortion Ban
"With a total ban still set to take effect June 8, the Arizona Abortion Access Act is needed now more than ever," one state campaigner said of a November ballot measure.
Apr 24, 2024
Three Republicans in the Arizona House of Representatives on Wednesday joined with Democrats to advance legislation that would repeal an 1864 ban on abortion—a development rights advocates welcomed while stressing that the fight is far from over.
The 32-28 vote on House Bill 2677—with GOP Reps. Tim Dunn (25), Matt Gress (4), and Justin Wilmeth (2) voting in favor—was the third attempt in as many weeks to pass repeal legislation since the Arizona Supreme Court upheld the ban.
"The state Senate could vote on the repeal as early as next Wednesday, after the bill comes on the floor for a 'third reading,' as is required under chamber rules," according toNBC News. Democratic Gov. Katie Hobbs on Wednesday toldThe Washington Post that "I am hopeful the Senate does the right thing and sends it to my desk so I can sign it."
Applauding the House passage of H.B. 2677, Planned Parenthood Advocates of Arizona president and CEO Angela Florez said that "today, Arizona is one step closer to repealing the state's Civil War-era total abortion ban. While the repeal still must pass the Senate, this is a major win for reproductive freedom."
"We must celebrate today's vote in support of abortion rights and harness our enthusiasm to spread the word and urge lawmakers in the Senate to support this necessary repeal bill," she continued. "Despite this step forward, Arizonans cannot stop fighting."
Florez noted that "even with the repeal of the Civil War-era ban, the state will still have a ban on abortion after 15 weeks of pregnancy that denies people access to critical care. And lawmakers continue to attack Arizonans' ability to access reproductive healthcare. Our right to control our bodies and lives is hanging on by a thread."
"Thankfully, voters will have the opportunity to take back control if the Arizona Abortion Access Act is on the ballot this November," she added. "Abortion bans are out-of-step with the will of Arizonans and will force pregnant people to leave their communities for essential healthcare. Planned Parenthood Advocates of Arizona will continue fighting to ensure everyone has the right to make decisions about their health and futures."
The Arizona Abortion Access Act is a proposed state constitutional amendment that would prevent many limits on abortions before fetal viability and safeguard access to care after viability to protect the life or physical or mental health of the patient.
The coalition supporting the amendment, Arizona for Abortion Access, highlighted on social media that the House-approved bill "did not include the emergency clause required to stop the 1864 ban from taking effect on June 8," meaning H.B. 2677 wouldn't apply until 90 days after the end of the legislative session.
Coalition campaign manager Cheryl Bruce said that "with a total ban still set to take effect June 8, the Arizona Abortion Access Act is needed now more than ever. We remain committed to taking these decisions out of the hands of extremist politicians."
Arizona is one of multiple states where rights advocates are promoting abortion rights ballot measures this cycle. Reproductive freedom is also dominating political races at all levels, including the presidential contest. Democratic President Joe Biden is set to face former Republican President Donald Trump in November.
"Donald Trump is responsible for Arizona's abortion ban. Women in the state are still living under a ban with no exceptions for rape or incest and have been stripped of the freedom to make their own healthcare decisions," said Julie Chávez Rodriguez, Biden and Vice President Kamala Harris' reelection campaign manager.
While the presumptive GOP nominee has tried to distance himself from the Arizona Supreme Court's reinstatement of a 160-year-old abortion ban, he has also campaigned on his three appointees to the U.S. Supreme Court who helped reverse Roe v. Wade.
"Trump brags that he is 'proudly' the person responsible for these bans and if he retakes power, the chaos and cruelty he has created will only get worse in all 50 states," Chávez Rodriguez said. "President Biden and Vice President Harris are the only candidates who will stop him."
Keep ReadingShow Less
US Dodges Growing Calls for Probe of Mass Graves at Gaza Hospitals
"Somehow I don't think the U.S. State Department would defer to Russia as a credible source to investigate itself if a mass grave were discovered in Ukrainian territory it had occupied," said one legal expert.
Apr 24, 2024
While continuing to give Israel billions of dollars in support to wage war on the Gaza Strip, the Biden administration this week has declined to join the growing global demands for an international probe into mass graves discovered at hospitals in the besieged Palestinian enclave.
Two journalists on Tuesday questioned Vedant Patel, a spokesperson for the U.S. State Department, about the administration's response to the hundreds of bodies found at Gaza City's al-Shifa Hospital and Nasser Hospital in Khan Younis as well as United Nations High Commissioner for Human Rights Volker Türk's call for an independent investigation.
"Would you support such an independent investigation?" Said Arikat asked during a press briefing. Patel responded, "Right now, Said, we are asking for more information... That is squarely where we are leaving the conversation."
Patel added that "I don't have any details to match, confirm, or offer as it relates to that. We're aware of those reports, and we have asked the government of Israel for additional clarity and information. And that's where I'm at."
When Said asked a follow-up about potential U.S. support for a probe, Patel reiterated that the administration is awaiting information from the Israeli government.
Later, Niall Stanage asked Patel to explain U.S. "resistance" to supporting a probe, the spokesperson insisted that "it's not about resistance to this particular situation, it is me not wanting to speak in detail about something which Said posed as a hypothetical question when, from the United States' perspective, I don't have any additional information on this aside from the public reporting."
After Patel again stressed that the administration has asked Israel for more information, Stanage inquired, "And do you believe the government of Israel is a credible source in enlightening you?"
The spokesperson interrupted Stanage to say, "We do."
While supporting the six-month Israeli assault on Gaza that the International Court of Justice has found to be plausibly genocidal, the Biden administration is also arming Ukrainians' resistance to a Russian invasion. Brian Finucane, a senior adviser for the Crisis Group's U.S. program and a former legal adviser at the State Department, pointed to the latter.
"Somehow I don't think the U.S. State Department would defer to Russia as a credible source to investigate itself if a mass grave were discovered in Ukrainian territory it had occupied," Finucane said on social media in response to Stanage's questioning.
Meanwhile, European Union spokesperson Peter Stano made clear Tuesday that the E.U. supports an independent probe.
"This is something that forces us to call for an independent investigation of all the suspicions and all the circumstances, because indeed it creates the impression that there might have been violations of international human rights committed," Stano said. "That's why it's important to have independent investigation and to ensure accountability."
Human rights groups around the world joined the call for an independent investigation on Wednesday, as the official death toll in Gaza hit 34,262 with 77,229 people injured and thousands more missing and presumed dead beneath the rubble.
In an Arabic statement translated by Al Jazeera, the Euro-Mediterranean Human Rights Monitor said that the number of bodies found in the mass graves is "alarming, and requires urgent international action, including the formation of an independent international investigation committee."
The group added that some of those killed were subjected to "premeditated murder as well as arbitrary and extrajudicial executions while they were detained and handcuffed."
Amnesty International senior director of research, advocacy, policy, and campaigns Erika Guevara Rosas said in a statement that "the harrowing discovery of these mass graves underscores the urgency of ensuring immediate access for human rights investigators, including forensic experts, to the occupied Gaza Strip to ensure that evidence is preserved and to carry out independent and transparent investigations with the aim of guaranteeing accountability for any violations of international law."
"Lack of access for human rights investigators to Gaza has hampered effective investigations into the full scale of the human rights violations and crimes under international law committed over the past six months, allowing for the documentation of just a tiny fraction of these abuses," she noted. "Without proper investigations to determine how these deaths took place or what violations may have been committed, we may never find out the truth of the horrors behind these mass graves."
Guevara Rosas continued:
Mass grave sites are potential crime scenes offering vital and time-sensitive forensic evidence; they must be protected until professional forensic experts with the necessary skills and resources can safely carry out adequate exhumations and accurate identification of remains.
The absence of forensic experts and the decimation of Gaza's medical sector as a result of the war and Israel's cruel blockade, along with the lack of availability of the necessary resources for the identification of bodies such as DNA testing, are huge obstacles to the identifications of remains. This denies those killed the opportunity to have a dignified burial and deprives families with relatives missing or forcibly disappeared the right to know and to justice—leaving them in a limbo of uncertainty and anguish.
Noting that the International Court of Justice directed Israel to preserve evidence in its initial genocide case order, Guevara Rosas said that "amid a total vacuum of accountability and mounting evidence of war crimes in Gaza, Israeli authorities must ensure they comply with the ICJ ruling by granting immediate access to independent human rights investigators and ensuring that all evidence of violations is preserved."
"Third states must pressure Israel to comply with the ICJ orders by allowing the immediate entry into the Gaza Strip of independent human rights investigators and forensic experts, including the U.N.-appointed Commission of Inquiry and investigators of the International Criminal Court," she added. "There can be no truth and justice without proper, transparent independent investigations into these deaths."
Keep ReadingShow Less
Most Popular