A Brett Kavanaugh confirmation to the United States Supreme Court, coupled with the four other right-wing judicial activists currently on the court, could upend the Endangered Species Act of 1973 (ESA) as well as clean water, and the existential crisis that is climate change.
That is because in its 2018-2019 term, the Supreme Court will hear its first oral arguments on Weyerhaeuser Co. v. Fish and Wildlife Service, on October 1, 2018. Under the ESA, species can be listed as either “endangered” or “threatened.” The U.S. Fish and Wildlife Service defines "Endangered" as a species that is in danger of extinction, throughout all or a significant portion of its range. "Threatened" means a species is likely to become endangered within the foreseeable future.
President Trump’s outrageous efforts to eliminate “job-killing regulations,” and the rising threat by potential judge-made constraints on our ability to sue to enforce environmental laws, are a real and growing danger in this era of insanity where the scientific know-nothings currently control all levers of power in the U.S. government.
The relentless bombardment of chaos by the master of distraction, Donald Trump, has allowed severe harm to our nation's governmental institutions and their policies. Flying under the radar, the GOP, urged on by the oil, gas and mining industries, intend to inflict damage to public lands in order to cash in on the resources owned and managed by the American people.
In a killer Mother Jones article on the Weyerhaeuser Co. v. Fish and Wildlife Service case, Jackie Flynn Mogenson provides background on a case that keeps environmentalists awake at night.
Weyerhaeuser Co. v. FWS focuses on the critically-endangered dusky gopher frog, a three-inch, warty amphibian native to Mississippi. Back in 2010, the Fish and Wildlife Service designated more than 1,500 acres of private Louisiana land as critical habitat for the frog. The land had been owned by three private entities, including Weyerhaeuser, a timber company, which now argues that the agency’s action was an overstep of power. The key issue, they claim, is that the land was unoccupied, meaning there were no frogs living there at the time it was designated, and that the land is “not essential” for the conservation of the species. Therefore, the company says, the Fish and Wildlife Service had no right to designate the land as critical habitat.
The Fish and Wildlife Service, though, maintains that they do in fact have that right, as granted by the Endangered Species Act. The habitat contains historic breeding sites for the frog and its decision was based on scientific evidence, the Service says. In 2016, the United States Court of Appeals for the Fifth Circuit agreed. (The Weyerhaeuser Company and the Interior Department, which oversees FWS, did not respond to requests for comment from Mother Jones.)
Now the case has risen up to the Supreme Court, where, for the first time ever, experts say, the justices will determine how far the Fish and Wildlife Service can go in deciding what land is critical for a species’ survival, with particular focus on unoccupied lands. And the court’s ruling likely won’t just impact the gopher frog, but potentially more than 100 species, Snape says, protected under the Endangered Species Act, now and in the future. More than 750 species have been granted a critical habitat designation under the law—including the polar bear, California condor, and leatherback sea turtle—though it is unclear how many include unoccupied critical habitats. If the court rules in favor of Weyerhaeuser, it would certainly open the door for more land-use challenges from private landowners.
The firestorm rightly engulfing current Trump nominee Kavanaugh—over allegations of sexual assault, gang rape, and lying to Congress—has grabbed the majority of news coverage, and rightly so. However, extinction is forever, and Slate provides the rundown of some key decisions that shines a spotlight on Kavanaugh’s approach to the environment and climate change.
The four other conservative justices also have records hostile to the climate and environment in general. John Roberts, for example, has always been an activist determined to throw out protections for endangered species.
Justice Samuel Alito wrote the majority opinion in National Association of Homebuilders v Defenders of Wildlife ruling that the ESA did not require the Environmental Protection Agency to “apply additional criteria when evaluating a transfer of pollution control jurisdiction under the Clean Water Act.”
Justice Clarence Thomas voted with the minority in the Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc.: “This case has potentially significant implications for environmental regulations. Whether an agency is entitled to Chevron deference can greatly impact the outcome of a challenge to an agency’s regulation.”
Justice Neil Gorush, a carbon copy of Antonin Scalia, was appointed by Donald Trump after the seat was stolen from President Obama by Mitch McConnell, is the son of Anne Gorsuch, who served as Ronald Reagan’s EPA head, and who did her best to dismantle the agency. Said the Center for Biological Diversity, in a press release after he was nominated: “Gorsuch's track record on the 10th Circuit Court of Appeals suggests that he will consistently rule in favor of wealthy corporate interests at the expense of environmental safeguards, civil rights, and social justice.”
Sofie Werthan writes for Slate Magazine on four examples of Kavanaugh’s hostility toward environmental regulations:
• 2012: In a split ruling, the Court of Appeals for the District of Columbia struck down a federal rule aimed at reducing air pollution in downwind states caused by power plants, smokestacks, and refineries in upwind states (known popularly as the Cross-State Air Pollution Rule). In the opinion, written by Judge Kavanaugh, the court found that the EPA had overstepped its authority by improperly requiring states “to reduce their emissions by more than their own significant contribution to a downwind state’s nonattainment.”
• 2014: Judge Kavanaugh argued in a dissenting opinion that the EPA must weigh monetary costs when deciding whether to regulate power plant emissions. In the case, the appeals court affirmed the EPA’s emissions standards for mercury and other pollutants from power plants, and the majority agreed that the EPA did not need to consider the costs. Kavanaugh bristled at this decision, writing, “In my view, it is unreasonable for EPA to exclude considerations of costs in determining whether it is ‘appropriate’ to impose significant new regulations on electric utilities.”
• 2016: During oral arguments about the Clean Power Plan, President Obama’s signature climate change policy, Judge Kavanaugh acknowledged that climate change is real, but suggested that it was the job of legislators to come up with solutions, not the EPA or the courts. “The policy is laudable,” Kavanaugh said, referring to the Clean Power Plan. “The earth is warming. Humans are contributing. I understand the international impact and the problem of the commons.” But, he added, “Global warming isn’t a blank check” for the president to impose emissions regulations.
• 2017: In a 2-to-1 ruling, the Court of Appeals for the District of Columbia ruled against an Obama-era EPA regulation that aimed to phase out hydrofluorocarbons, a type of potent greenhouse gas commonly used for refrigeration and air conditioning. The court ruled that the EPA cannot ban the substances under the Clean Air Act provision meant to protect the ozone layer. “However much we might sympathize or agree with EPA’s policy objectives, EPA may act only within the boundaries of its statutory authority,” Judge Kavanaugh wrote “Here, EPA exceeded that authority.”
Before a moratorium on commercial whaling in 1985, all populations of humpback whales were greatly reduced, some by more than 95 percent. The species is increasing in abundance in much of its range, but faces threats from entanglement in fishing gear, vessel strikes, vessel-based harassment, underwater noise, and habitat impacts.Still not convinced? Check out Brett Kavanaugh’s Record Sets A Dangerous Precedent On Endangered Species, from the Climate Desk collaboration:
Kavanaugh’s past votes display a “striking pattern of deciding against the interest of the species,” said Sarah Krakoff, a law professor at the University of Colorado Boulder.
“There is no pattern of either deferring or not deferring to the government,” added Krakoff. “The pattern really is that whoever is asking for more protection for the species loses.”
When Congress passed the Endangered Species Act and President Richard Nixon signed it into law 45 years ago, there was no partisan divide on saving species or creating science-backed policies to do so. But in the decades since there’s been a lot of very successful advocacy by property rights groups like the Federalist Society that “makes it seem as if the Endangered Species Act is pitted strongly against individual rights and freedoms, individual property and paints the specter of the big, bad government preventing people from doing what they want with their property,” Krakoff said.
And while the idea that species protections are trampling on the rights of homeowners and small businesses has become popular, “often the real movers and shakers behind opposition to the Endangered Species Act and other environmental laws” are much bigger players, Krakoff said, pointing to major real estate and natural resource developers.
The below video of a captive endangered Gray Wolf is from the Wolf Conservation Center, a non-profit organization that promotes wolf conservation.
x xYouTube VideoThere are so many reasons that Judge Kavanaugh should not be on the Supreme Court. Opposition to protecting endangered species and their habitats is yet another example that this man has no justifiable reason being confirmed to a lifelong appointment to the highest court in the land. A poll from 2015 shows that 90% of Americans support the ESA, and in addition, they would vote against any congressional rep who fails to uphold environmental laws.