How Supreme Court Pick Brett Kavanaugh Could Affect The Energy Industry


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Jason Hopkins Immigration and politics reporter
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From the ethanol industry to environmental regulations, President Donald Trump’s selection of Brett Kavanaugh could have far-reaching consequences for the U.S. energy sector.

Speaking at the White House on Monday night, Trump revealed Kavanaugh to be his pick to replace outgoing Supreme Court Justice Anthony Kennedy. Kavanaugh currently serves on the D.C. Circuit Court of Appeals, where former President George W. Bush’s administration nominated him in 2003. A graduate of Yale College and Yale Law School, Kavanaugh went on to accumulate around 20 years of experience as a lawyer and appeals judge.

While speculation has mainly pertained to how he will influence the partisan alignment of the nation’s highest court, energy experts are focused on how the industry will be affected.

The replacement of Kennedy with a more conservative judge could lead to the reversal of Massachusetts v EPA, a 2007 Supreme Court decision that enabled the Environmental Protection Agency (EPA) to regulate carbon dioxide and other greenhouse gas emissions. Kennedy joined left-leaning judges in the tight 5-4 vote, with the outcome greatly empowering the federal government to regulate air pollution.

In the six climate change cases he’s been involved in, Kavanaugh has taken a “narrow” view of the EPA’s regulatory authority, according to a count by environmental attorney David Bookbinder.

“Above all, he is skeptical of new regulations that significantly expand an agency’s regulatory reach or impose substantial new costs without clear congressional authorization,” Harvard Law School’s Jody Freeman said in a statement to Axios. “But I am not sure he is so different from Justice Kennedy on this score. He might not have voted with the majority, had he been on the Court for Mass v EPA as Justice Kennedy did, but  I don’t imagine the Court will overturn Mass v EPA anytime soon.” (RELATED: New SCOTUS Appointment Could Mean More EPA Deregulation)

The ethanol industry might be delighted with Kavanaugh’s entrance into the Supreme Court.

Ethanol has been a tricky subject for the Trump administration. “Big Corn” and “Big Oil” have been waging war over the Renewable Fuel Standard (RFS), a mandate that requires refineries to blend ethanol into their oil. Farmers support the mandate because it drives demand for their product, but refiners hate that it drives up their production costs. The two sides have fought over the granting of waivers to refiners to avoid the mandate.

The Supreme Court nominee has previously ruled in favor of ethanol supporters. In Americans for Clean Energy, et al., v. EPA and Scott Pruitt, Kavanaugh agreed with Americans for Clean Energy that the EPA erred in applying the “inadequate domestic supply” waiver provision.

The RFS debate could possibly be brought to the Supreme Court, where Kavanaugh’s previous decision could prove foretelling.

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