President Trump’s pick for the Supreme Court, Brett Kavanaugh, is a conservative judge who, during his 12-year tenure on the U.S. Court of Appeals for the District of Columbia Circuit, has ruled both for and against the Environmental Protection Agency (EPA), FERC, and the oil and gas industry.
On Monday, Trump selected Kavanaugh to replace Justice Anthony Kennedy, who announced last month that he would retire after 30 years on the bench. Kavanaugh is one of Kennedy’s former law clerks.
Kavanaugh, a Republican, was nominated by President George W. Bush to the appellate court in 2003, but partisan bickering in the Senate prevented him from being confirmed for another three years. He was sworn in by Kennedy on June 1, 2006.
In November of that year, Kavanaugh wrote the opinion for the case National Fuel Gas Supply v. FERC. In that case, the appellate court ruled that the Federal Energy Regulatory Commission overreached when it decided two years earlier to revise and expand the scope of its Standards of Conduct to include pipelines’ relationships with other industry entities, like producers and processors.
Six years later, in EPA v. EME Homer City Generation LP, the appellate court vacated an EPA rule aimed at reducing sulfur dioxide and nitrogen oxide emissions from coal- and natural gas-fired power plants in 28 upwind states located primarily in the East and Texas. Kavanaugh opined that the EPA’s transport rule had exceeded the agency’s authority and had violated the Clean Air Act.
But the appellate court, and Kavanaugh, has also ruled in favor of the EPA and FERC.
In a 2014 case, Minisink Residents for Environmental Preservation and Safety et al v. FERC, Kavanaugh and two other judges denied a request to review a FERC decision to allow Millennium Pipeline Co. LLC to construct a compressor station in the Town of Minisink, NY.
The next year, the court tossed a lawsuit filed by 14 states and several coal companies that were attempting to block Obama-era rules governing greenhouse gas (GHG) emissions from power plants. A three-judge panel that included Kavanaugh said the GHG rules couldn’t be challenged because they were in draft form at the time.
In 2017, the full appellate court denied a motion by the oil and gas industry to rehear arguments over the EPA’s proposed rules governing fugitive emissions, pneumatic pumps and professional engineer certification requirements as outlined in updates to the agency’s New Source Performance Standards. Respondents in the case, Clean Air Council et al. v. EPA, included the American Petroleum Institute, the GPA Midstream Association, the Interstate Natural Gas Association of America, the Independent Petroleum Association of America and Western Energy Alliance (WEA), as well as numerous state organizations representing producers.
But earlier in 2017, the court rejected a request by two Native American tribes to block the Dakota Access Pipeline project.
WEA President Kathleen Sgamma told NGI that “it is very encouraging to have a nominee who has such a strong track record of ensuring that federal agencies stay within their proper regulatory roles.
“For too long, agencies have assumed regulatory powers they weren’t given by Congress, with several instances that WEA has had to fight in court. Having a strong signal from the very top will hopefully persuade federal judges to focus back on the laws at hand and not on advancing policies they think should be in place.”
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