A Pattern of Ruling Against Mother Nature: Wildlife Species Cases Decided by Justice Kavanaugh on the DC Circuit

Author:William J. Snape, III
Position:Fellow, Practitioner-in-Residence, and Assistant Dean for Adjunct Faculty Affairs, American University, Washington College of Law. Senior Counsel, Center for Biological Diversity. Chairman of Board of Directors, Endangered Species Coalition. B.A., Honors College, magna cum laude, University of California, Los Angeles; J.D., George Washington ...
Pages:4-10
 
CONTENT
4Sustainable Development Law & Policy
a pattern of ruling againSt mother nature:
wilDlife SpecieS caSeS DeciDeD by JuStice Kavanaugh
on the Dc circuit
By William J. Snape, III*
I. INTRODUCTION
Brett Kavanaugh was sworn in as the 114th individual to
serve on the United States Supreme Court on October
6, 2018, following perhaps the most acrimonious Sen-
ate debate and vote in history. 1 Before this nomination to be
an associate justice, Justice Kavanaugh served on the United
States Court of Appeals for the D.C. Circuit for twelve years.2
Although many progressive and citizen interest groups have
expressed concern or objection over the nomination – including
environmental groups concerned about a wide range of issues
from climate change and toxic pollutants to safe drinking water
and scientic integrity – no systematic analysis of his D.C. Cir-
cuit decisions has been done for wildlife conservation.3 The fed-
eral laws of wildlife protection – including endangered species,
migratory bird, and marine mammal statutes – raise important
and poignant questions about the human relationship with the
natural world, and about the rule of law generally. Because wild-
life is generally not owned by any human until lawfully taken
into possession, society’s treatment of wildlife reveals not only
our shared values outside the modern market system, but also
our compassion for other sentient beings.4
During his dozen years on the federal bench, Justice
Kavanaugh has been a part of eighteen wildlife species deci-
sions and has ruled against wildlife 17.25 times,5 this is a
ninety-six (96) percent record against wildlife. By comparison,
D.C. Circuit Judge David Sentelle, a former Chief Judge and
conservative jurist, possesses a 57-43 “against wildlife” score.6
Judge Merrick Garland, a former Chief Judge and moder-
ate jurist, possesses a 46-54 “against wildlife” score.7 In sum,
Justice Kavanaugh’s ninety-six percent anti-wildlife record is
signicantly higher than comparable conservative and moderate
scores of fty-seven percent anti-wildlife (Sentelle) and forty-
six percent anti-wildlife (Garland) records.
These numbers, along with Justice Kavanaugh’s own words
through his written decisions, demonstrate a tangible and sig-
nicant bias against wildlife conservation. Whenever a vested
economic interest runs up against a wildlife conict, Justice
Kavanaugh almost always rules against the public interest in
wildlife protection.
II. METHODOLOGY
All D.C. Circuit cases mentioning the word “species,”
“marine mammal,” “wildlife,” or “migratory bird” were identi-
ed, using the names of Judges Kavanaugh, Sentelle, and Garland
as an additional lter.8 Several cases identied possessed more
than one of the searched terms. Many other identied cases had
one or more terms, but possessed no cause of action or sought
relief pertaining to actual wildlife protection in any way; these
cases were excluded from this study.9 All of the wildlife cases
involving Justice Kavanaugh are listed and discussed in this
paper.10 The methodology was a conservative approach because
where wildlife conservation was a background issue and the
decision was based on a procedural matter unrelated to federal
wildlife law, the case was excluded from the analysis. Similarly,
Justice Kavanaugh cases primarily dealing with public health or
general environmental issues were also excluded from this study.
The wildlife cases (and their dispositions) decided by Judge
Sentelle and Judge Garland are included in the Appendices of
this article. Justice Kavanaugh’s ninety-six percent anti-wildlife
record is signicantly higher than comparable conservative and
moderate scores of fty-seven percent anti-wildlife (Sentelle)
and forty-six percent anti-wildlife (Garland) records.
III. ANALYSIS
Federal wildlife law is mostly a statutory or treaty-based
phenomenon implemented by federal agency rules and policies.11
Traditionally, states hold their primary jurisdiction over wildlife
in trust for their citizens.12 Utilizing primarily the commerce,
tax, treaty, and/or federal lands clauses of the U.S. Constitution,
Congress has been participating in wildlife conservation efforts
in the United States since the 1900 Lacey Act.13
Today, a bevy of federal statutes – ranging from the
Endangered Species Act14 and Marine Mammal Protection Act15
to the Migratory Bird Treaty Act16 and the Magnuson-Stevens
Fisheries Conservation Act,17 not to mention the National
Environmental Policy Act (NEPA)18 and public lands laws19
provide protections to thousands of different sh and wildlife
species. While the Environmental Protection Agency (EPA)
gures into some of these federal wildlife decisions, most of the
decisions are by other “environmental” agencies including the
Department of the Interior, Interior’s Fish and Wildlife Service
(FWS) and Bureau of Land Management (BLM), the Department
of Commerce, Commerce’s National Marine Fisheries Service
(NMFS), the Army Corps of Engineers, the Forest Service under
*Fellow, Practitioner-in-Residence, and Assistant Dean for Adjunct Faculty
Affairs, American University, Washington College of Law. Senior Counsel,
Center for Biological Diversity. Chairman of Board of Directors, Endangered
Species Coalition. B.A., Honors College, magna cum laude, University of Cali-
fornia, Los Angeles; J.D., George Washington University.
5
Fall 2018
the Department of Agriculture, the Department of State, and
others.
Examining Justice Kavanaugh’s wildlife cases on the D.C.
Circuit is instructive for at least two reasons. First, these cases
involve a variety and diversity of parties and legal issues that
affect many other sectors of society. Second, the entire concept
of wildlife conservation is frequently one where a vested and
specic economic interest is somehow pitted against the public’s
interest in wildlife protection generally. All U.S. wildlife statutes
possess mechanisms to address and ameliorate these conicts,
but because only a human being can currently possess legal
standing to sue in U.S. courts, humans seeking to protect wild-
life species often must literally challenge other human economic
development. In other words, the “public interest” is frequently
the central beneciary of wildlife conservation because wildlife,
by denition, is owned by no one in particular, but held in trust
under the law for all people.20
Justice Brett Kavanaugh holds well-recognized skepti-
cism in other areas of environmental law such as Clean Air
Act protection and global warming regulation.21 The question
accordingly arises whether Justice Kavanaugh possesses other
objective biases.22 In this study, all of Justice Kavanaugh’s
D.C. Circuit decisions involving animal and plant species were
analyzed, as discussed in the Methodology.23 An examination
of wildlife law is also relevant and timely because the Supreme
Court has recently shown renewed interest in the Endangered
Species Act (ESA) by deciding an ESA case this term,
Weyerhaeuser Company v. U.S. Fish and Wildlife Service.24 In
this 8-0 decision, which Justice Kavanaugh did not participate
in because he had not yet been conrmed, the Court held that
the Secretary of Interior’s decision not to exclude portions of
critical habitat under the ESA was reviewable agency action
by a federal court.25 The Supreme Court remanded to the Fifth
Circuit to determine whether the FWS decision not to exclude
any dusky gopher frog critical habitat on about 1500 acres
owned by Weyerhaeuser, was arbitrary and capricious in light of
the economic analysis performed by FWS consultants, as well
as the entire administrative record including the agency expert’s
scientic assessment of the biological suitability of the lands in
question.26 It is quite plausible that this case could again nd its
way back to the Supreme Court after the Fifth Circuit makes its
factual determination of the new legal framework articulated by
Chief Justice Roberts in this unanimous decision.
Justice Kennedy was often the swing vote on the United
States Supreme Court in favor of environmental and wildlife
protection under the Clean Water Act, Clean Air Act, ESA, and
other laws.27 Justice Kavanaugh, however, does appear to have a
statistically proven bias against wildlife species during litigation.
Of the eighteen (18) wildlife species cases that he has actively
participated on during his twelve-year tenure on the D.C. Circuit,
he has ruled against wildlife species over seventeen times (17.25
to be exact, because two decisions possessed “split” species
outcomes). Thus, wildlife species lose approximately ninety-six
percent of the time when before Justice Kavanaugh. In addition,
when Justice Kavanaugh issues written decisions on wildlife
species himself, they are always strongly and stridently on the
side against wildlife and species protection.
Whenever wildlife is up against either a corporation or
the Republican Party, Justice Kavanaugh seemingly goes out
of his way to defeat wildlife.28 For example, in American Bird
Conservancy v. Federal Communications Commission,29 Justice
Kavanaugh, in dissent, misstated the conservation plaintiff’s
injuries.30 In Carpenter Industrial Council v. Zinke,31 Justice
Kavanaugh granted standing to the timber industry to challenge
threatened spotted owl critical habitat on federal public lands.
32 He explained that even if the industry only lost one dollar as
a result of the critical habitat designation, it would still consti-
tute an “injury-in-fact for standing purposes.33 In Otay Mesa,
LP v. Department of the Interior,34 Justice Kavanaugh, in an
ESA critical habitat case, held FWS biologists to a very high
level of scientic certainty.35 In Mingo Logan v. Environmental
Protection Agency,36 Justice Kavanaugh, in dissent, sought
to overturn EPA’s decision to address massive water pollu-
tion from mountaintop removal for coal extraction.37 West
Virginia v. U.S. Environmental Protection Agency,38 was one
of a series of decisions and currently active cases where Justice
Kavanaugh expressed hostility toward regulating greenhouse
gases that kill wildlife and humans alike.39 In Fund for Animals
v. Kempthorne,40 Justice Kavanaugh dismissed the importance
of four migratory bird treaties in a separate and unnecessary
concurrence.41
These wildlife species-related decisions, including Justice
Kavanaugh’s frequently aggressive opinions, are discussed and
analyzed more fully below, in chronological order. Cumulatively,
Justice Kavanaugh’s ninety-six percent record against wildlife
represents a noticeable bias.42
IV. JUSTICE KAVANAUGH’S
DEMONSTRATED ANTI-WILDLIFE
BIAS IN D.C. CIRCUIT CASES
Fund for Animals v. Kempthorne, 472 F.3d 872 (D.C. Cir.
2006) (two opinions by Justice Kavanaugh).
In Justice Kavanaugh’s rst wildlife case on the D.C.
Circuit, he made his anti-wildlife sentiment immediately
known.43 He took the unusual step of writing both the opinion of
the court, as well as an unnecessary concurring opinion, which
no other judge joined.44 In his concurrence, he addressed his
view that the Migratory Bird Treaties45 are not self-executing,
and thus deserve no credence in interpreting the Migratory Bird
Treaty Act (MBTA) itself.46 This position completely ignored
the many treaties that have shaped U.S. wildlife statutes.47 It is
also a position that revealed Justice Kavanaugh’s many conict-
ing views on executive power and privilege.48 In this case, an
animal welfare group and property owners challenged the FWS
decision not to list the mute swan as protected under the MBTA
in response to a plan by the Maryland Department of Natural
Resources to kill a portion of the state’s adult mute swans.49 The
MBTA was passed in 1918 pursuant to the rst Migratory Bird
Treaty of 1916 with the United Kingdom and Canada, and the
statute explicitly makes it “unlawful to hunt or kill migratory
6Sustainable Development Law & Policy
birds included in the terms of the conventions.” 50 Congress
amended the MBTA in 2004 so that it “applies only to migratory
bird species that are native to the United States” or its territo-
ries.51 The plaintiffs argued here that the MBTA still includes
protection for the mute swan because: (1) the statute still reads
that it is “unlawful . . . [to] hunt . . . [or] kill . . . any migratory
bird . . . that is included in the terms of the conventions,” and the
“sense of Congress” provision within the amended statute stated
that, “it is the sense of Congress that the language of the section
is consistent with the intent and language of the [four] bilateral
treaties implemented by this section,” and (2) the statute must
therefore be deemed ambiguous and not interpreted to abrogate
a treaty.52 Justice Kavanaugh ruled against wildlife by holding
that the MBTA excluded mute swans despite the wording of the
four migratory bird treaties to the contrary.53
Justice Kavanaugh Decision in Fund for Animals: Against
Wildlife Species
Oceana v. Gutierrez, 488 F. 3d 1020 (D.C. Cir. 2007).
Justice Kavanaugh was part of a majority decision that
rejected an ESA consultation challenge to the Department of
Commerce’s approval of longline shing in the Atlantic Ocean
and Gulf of Mexico of swordsh and tuna.54 Despite undisputed
scientic evidence that longline shing is killing too many
endangered leatherback turtles, Justice Kavanaugh and his panel
decided for the Bush Commerce Department.55 As the majority
conceded at the end of their opinion “since the [Reasonable and
Prudent Alternative] already includes hook and gear removal
requirements, ‘the only remaining way to achieve further reduc-
tions in leatherback mortality in the pelagic longline shery
would be through closures that reduce shing effort in areas of
high leatherback bycatch.’”56 Although the federal agency had
the authority to issue such closures, it declined to do so here and
many endangered sea turtles consequently died.57
Justice Kavanaugh Decision in Oceana, Inc.: Against
Wildlife Species
American Bird Conservancy v. Federal Communications
Commission, 516 F.3d 1027 (D.C. Cir. 2008) (Dissenting
Opinion by Justice Kavanaugh).
The majority opinion ruled that the Federal Communications
Commission (FCC) violated both NEPA and Section 7 of the
ESA because of cell tower approvals in the Gulf Coast region
that harmed many bird species.58 Justice Kavanaugh dissented,
calling the lawsuit by conservation groups “unripe.”59 The two
majority judges stated in response to Justice Kavanaugh:
Our dissenting colleague’s assertion that this case is
unripe . . . rests on the mistaken assumption that the
Commission has set about reconsidering Petitioner’s
precise requests through its nationwide inquiry into the
migratory bird issue. However . . . [the Commission]
nowhere indicates [it is] reconsidering the Gulf Coast
petition calling for a programmatic Environmental
Impact Statement under NEPA, formal consultation
under the ESA, or notice of pending tower registration
applications.60
In addition, not even the FCC made Justice Kavanaugh’s
extreme argument, as the majority noted: “[n]either point is
lost on the Commission: not only does its brief not invoke the
ripeness doctrine, but while the Commission explicitly deferred
consideration of Petitioners’ MBTA claim to the nationwide
proceeding, it denied and dismissed Petitioners’ ESA and NEPA
claims.”61
Justice Kavanaugh Decision in American Bird Conservancy:
Against Wildlife Species
North Carolina Fisheries Association v. Gutierrez, 550 F.3d 16
(D.C. Cir. 2008).
Fishermen won a federal district court decision under the
Magnuson-Stevens Fishery Conservation and Management
Act for the NMFS’s failure to promulgate a rebuilding plan for
certain sh species following a determination that such species
were “overshed.”62 After the district court approved a remedy
unsatisfactory to the plaintiff shermen, the D.C. Circuit heard
the appeal.63 Justice Kavanaugh and his panel rejected the
requested remedy by the shermen, opining that while it “does
seem rather peculiar – perhaps even a bit shy – that the Service
promulgated Amendment 15A without accompanying regula -
tions . . . we lack jurisdiction at this stage in the proceedings.”64
The court dismissed the case on jurisdictional grounds, despite
the plaintiff shermen’s strong claims on the merits.
Justice Kavanaugh Decision North Carolina Fisheries
Association: Against Wildlife Species
Eastern Niagara Public Power Alliance v. Federal Energy
Regulatory Commission, 558 F.3d 564 (D.C. Cir. 2009) (Opinion
by Justice Kavanaugh).
Justice Kavanaugh decided against several communities
in western New York who were challenging a 2007 Federal
Energy Regulatory Commission (FERC) licensing decision that
approved the New York Power Authority’s (NYPA) fty-year
relicensing application to operate the Niagara Power Project, a
hydroelectric facility about ve miles downriver from Niagara
Falls.65 The Federal Power Act directs FERC to issue licenses
for the “construction, operation, and maintenance of hydroelec-
tric projects on certain U.S. waters,” and in ruling on the licens-
ing applications for hydroelectric facilities, FERC must consider
an array of criteria.66 Some of these criteria include energy con-
servation, the protection of sh and wildlife, recreational oppor-
tunities, and environmental quality. Additionally, for relicensing
applications, factors include the project’s safety, efciency, reli-
ability, and its effects on the communities it serves.67 In arguing
against FERC, the plaintiffs made several arguments, including:
(1) that a fty-year license was too long and not consistent
with agency practice regarding the terms of licenses; and (2)
that FERC, as a condition of granting the license, should have
required the state power agency to mitigate certain adverse envi-
ronmental impacts allegedly caused by the project, particularly
7
Fall 2018
shoreline erosion.68 Justice Kavanaugh ruled against wildlife by
holding that the fty-year license to operate the Niagara Power
Project was “reasonable” despite the real negative impacts the
New York citizens had identied with the FERC project.69
Justice Kavanaugh Decision Eastern Niagara Public Power
Alliance: Against Wildlife Species
Otay Mesa, LP v. U.S. Department of the Interior, 646 F.3d 914
(D.C. Cir. 2011) (Opinion by Justice Kavanaugh).70
Justice Kavanaugh wrote the decision upholding the ESA
challenge by the real estate industry, which sought rejection of
the FWS designation of critical habitat for the San Diego fairy
shrimp.71 Although the federal district court judge in this case
found, based on expert biologist testimony, that the “FWS was
reasonable in its consideration that San Diego fairy shrimp
found in a hospitable location in 2001 would have also occupied
the same location in 1997[,]”72 Justice Kavanaugh was unim-
pressed with federal scientic expertise.73 Justice Kavanaugh
overturned the district court’s factual assessment, nding that
the FWS needed to continue looking for the rare habitat of a
highly endangered species.74 The court remanded the case to the
Agency.75
Justice Kavanaugh Decision in Otay Mesa, LP: Against
Wildlife Species
Sierra Club v. Van Antwerp, 661 F.3d 1147 (D.C. Cir. 2012).
In this case, Justice Kavanaugh was on a panel that ruled
almost entirely on behalf of the U.S. Army Corps of Engineers
and the decision to issue a permit authorizing the discharge
of dredge and ll material into specied wetlands – including
waters of the United States – outside rapidly developing Tampa,
Florida.76 Although the district court had found the Corps to be
in violation of the Clean Water Act, Justice Kavanaugh’s panel
reversed almost in its entirety.77 Conservationists argued that
the project adversely impacted the wood stork and the indigo
snake.78 The panel and Justice Kavanaugh rejected further pro-
tections for the wood stork.79 For the indigo snake, despite unre-
butted expert testimony from the FWS biologist about negative
impacts to the snake, the court stated “we do not reach the issue
of whether formal [ESA Section 7] consultation is required, but
the Corps must make some determination on the issue of habi-
tat fragmentation, both for ESA and NEPA purposes.”80 Thus,
Justice Kavanaugh ruled against the wood stork and though he
ruled in favor of the indigo snake, he did not order a biologi-
cal opinion for the species, as he was authorized to do, and that
could have helped the snake the most.81
Justice Kavanaugh Decision in Sierra Club: Three-Quarters
Against Wildlife/One-Quarter for Wildlife Species82
Friends of the Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir.
2012).
Justice Kavanaugh was part of a majority that overturned
a federal district court decision in favor of the West Virginia
Northern Flying Squirrel and its recovery plan.83 Justice
Kavanaugh interpreted the recovery plan as non-binding and
allowed the delisting of this species despite the fact the require-
ments of the recovery plan were not met.84 As Circuit Judge
Rogers stated in dissent:
[Justice Kavanaugh] defers to the Secretary’s inter-
pretation, contrary to the plain text of the Endangered
Species Act . . . that [the squirrel] loses all protection
even though the recovery criteria in its recovery plan
have not been met and those criteria are revised . . .
without required notice and prior consideration of
public comments. But even assuming, as the court
concludes, the ESA is ambiguous, the Secretary was
arbitrary and capricious in delisting the squirrel based
in material part on an analysis revising the recovery
plant criteria that was not publicly noticed until the
nal delisting rule. . . .85
This decision not only was a loss for the squirrels, but it also
was a loss of a signicant rollback of the conservation force of
ESA recovery plans.86
Justice Kavanaugh Decision in Friends of the Blackwater:
Against Wildlife Species
Conservation Force v. Jewell, 733 F.3d 1200 (D.C. Cir. 2013).
Judge Merrick Garland wrote for the unanimous panel that
included Justice Kavanaugh, and ruled against the plaintiffs
(backed by the Sierra Club) who were challenging the FWS’s
protection, management and import permitting of the markhor,
“an impressive subspecies of wild goat that inhabits an arid,
mountainous region of Pakistan.”87 Despite repeated delays
in responding to the plaintiffs by the Agency before the litiga-
tion was led, the majority panel held that the cause of action
to down-list the species was moot because the plaintiffs pos-
sessed no standing to challenge the FWS’s considerable delays
in processing permits.88 This case was a split decision because,
although the conservation action sought by the plaintiffs was
questionable, the court did correctly opine on the processing
delays by the Agency.89
Justice Kavanaugh Decision in Conservation Force: Half-
Against Wildlife Species/Half-for Wildlife Species
Center for Biological Diversity v. U.S. Environmental Protection
Agency, 749 F.3d 1079 (D.C. Cir. 2014).
The plaintiffs challenged the EPA’s delays in issuing
required new “secondary” national ambient air quality standards
for oxides of nitrogen, oxides of sulphur, and other related com-
pounds that contribute to acid rain.90 The impacts from acid rain
can be devastating to ecosystems, from harming water bodies of
all kinds and sizes, to killing many plants and trees in certain for-
ests.91 The EPA had already admitted that the current secondary
air standards were “not adequate to protect against the adverse
impacts of aquatic acidication on sensitive ecosystems.”92
However, because the EPA convinced a panel, which included
Justice Kavanaugh, that it was not yet “certain” it could promul-
gate a standard, Justice Kavanaugh and his fellow judges let the
8Sustainable Development Law & Policy
EPA off the hook for a clear obligation of the Clean Air Act.93
The court concluded: “[i]n other words, the fact that we have
rejected certainty as an appropriate goal . . . does not mean that
regulation is required (or permitted) no matter how much uncer-
tainty the agency faces.”94 By allowing the EPA off the hook,
Justice Kavanaugh once again ruled against needed protections
for wildlife.
Justice Kavanaugh Decision in Center for Biological
Diversity: Against Wildlife Species
Friends of Animals v. Ashe, 808 F.3d 900 (D.C. Cir. 2015)
(Opinion by Justice Kavanaugh).
In March 2012, Friends of Animals petitioned the FWS to
list ten species of sturgeon as endangered or threatened species
under the ESA.95 The ESA obligates the Agency to make an
initial determination on the species petition within ninety days
after receipt of the petition.96 However, the FWS issued no
determinations for any of the species petitioned.97 On August
16, 2013, well beyond the ninety-day period, Friends of Animals
sent the FWS written notice, as required by statute prior to ling
a lawsuit, that the Agency had failed to make initial and nal
determinations for the ten species of sturgeon.98 The federal
government argued that Friends of Animals had failed to pro-
vide proper notice of the lawsuit.99 Justice Kavanaugh wrote the
majority opinion for the Court100 and stated that,
[t]he question here—whether Friends of Animals com-
plied with the notice requirement of the Act—boils
down to a very narrow and extraordinarily technical
question regarding the timing of notice,” and that
“[because] Friends of Animals did not wait until after
the issuance of the positive initial determinations to
provide 60 days’ notice of the allegedly overdue nal
determinations, its suit seeking to compel the nal
determinations is barred.101
Here, Justice Kavanaugh found a way to deny the plaintiffs
an opportunity to protect wildlife threatened with extinction.102
Justice Kavanaugh Decision in Friends of Animals: Against
Wildlife Species
Defenders of Wildlife v. Jewell, 815 F.3d 1 (D.C. Cir. 2016).
A panel that included Justice Kavanaugh ruled against ESA
protections for the dunes sagebrush lizard of New Mexico and
Texas, whose habitat closely overlaps with current and potential
drilling actions by the oil and gas industry.103 The court con-
sidered whether a weak and unenforceable s tate management
agreement could be considered in denying ESA protections
for the lizard.104 Despite serious problems with the Texas plan
especially, the panel side-stepped the issue of adequacy of the
state conservation plans by noting that the Department of the
Interior had “new information” from the states and the federal
agencies.105 Further, the industry itself that indicated “current
and future threats are not of sufcient imminence, intensity, or
magnitude to indicate that the lizard . . . is in danger of extinction,
or likely to be become endangered within the foreseeable
future.”106 Thus, Justice Kavanaugh supported a spurious policy
reversal by the FWS that lessened protections for the lizard.107
Justice Kavanaugh Decision in Defenders of Wildlife:
Against Wildlife Species
Ark Initiative v. Tidwell, 816 F.3d 119 (D.C. Cir. 2016).
Justice Kavanaugh was part of a panel that ruled against
full protections for “roadless areas” under the National Forest
Management Act and NEPA.108 Despite the statute requirement
that roadless areas contain no roads or developments, this panel
allowed the Forest Service to permit ski facilities in prime wild-
life habitat for the lynx and countless other species, based upon
the discretion of the Agency to exclude certain multiple use areas
from roadless protection under the original Clinton-era roadless
rule.109 The result of the decision here is to allow recreational
skiing on approximately 8,300 acres of land despite the harm to
the lynx’s habitat.110
Justice Kavanaugh Decision Ark Initiative: Against Wildlife
Species
Friends of Animals v. Jewell, 824 F.3d 1033 (D.C. Cir. 2016).
The plaintiffs and appellants attempted to protect three
species of ESA-listed foreign antelopes: the scimitar-horned
oryx, addax, and dama gazelle.111 After the George W. Bush
Administration issued an import take permit exemption for
these three highly endangered mammals,112 Friends of Animals
successfully sued to stop the harmful practice of sport hunt
importing.113 After that previous litigation, Congress passed
a rider on an appropriations bill allowing the FWS exemption
program for the three species of antelope.114 The D.C. Circuit,
including Justice Kavanaugh, upheld Congress’ ability to pass
such riders: “Congress acted within constitutional bounds when
it passed Section 127. Therefore, there can be no doubt that
the [FWS] was fully authorized to reinstate the Captive-Bred
Exemption.”115
Justice Kavanaugh Decision Friends of Animals: Against
Wildlife Species
Earthreports, Inc. v. Federal Energy Regulatory Commission,
828 F.3d 949 (D.C. Cir. 2016).
Justice Kavanaugh was part of a panel that ruled against
species protection, including NEPA protections on behalf of
the highly endangered North Atlantic right whale.11 6 At issue in
this case was approval of the highly controversial Cove Point
liqueed natural gas (LNG) plant off the west shore of the
Chesapeake Bay, Maryland.117 The judges, including Justice
Kavanaugh, held that “because petitioners fail to show that
the Commission’s NEPA analysis was decient for failing to
consider indirect effects of the Cove Point conversion project
or inadequately considered their remaining concerns and that
[FERC] thus acted arbitrarily and capriciously, we deny the
petition for review.”118 Justice Kavanaugh here disregarded the
plaintiff’s attempt to protect species under NEPA, by deferring
9
Fall 2018
to FERC’s questionable determination of negligible impact to
the wildlife species.119
Justice Kavanaugh Decision Earthreports, Inc: Against
Wildlife Species
Mingo Logan Coal Co. v. U.S. Environmental Protection
Agency, 829 F.3d 710 (D.C. Cir. 2016) (Dissenting Opinion by
Justice Kavanaugh).
Justice Kavanaugh wrote a deant dissent in a case involv-
ing the waste caused by mountaintop removal to mine coal.120
Although the EPA had voluminous scientic studies demon-
strating that dumping this waste into rivers and streams would
have an “unacceptable adverse impacts” to the environment and
wildlife species, Justice Kavanaugh would have issued the min-
ing company the permit, which the EPA had revoked through its
clear and unambiguous authority under the Clean Water Act.121
In other words, Justice Kavanaugh had no problem with the coal
company continuing to pollute and destroy rivers and streams
with their waste from an industrial practice that already greatly
contributes to global warming and toxic air pollution.122 Justice
Kavanaugh argued that the coal company’s cost-benet analysis
should override the Agency’s public health assessments.123 As
the majority said of Justice Kavanaugh’s dissent:
In reply to our dissenting colleague’s one-paragraph
cri de coeur characterizing Mingo Logan’s forfeiture
as “entirely unfair” based on EPA’s stance that costs are
“irrelevant,” . . . we have an equally pithy reply: A party
has an obligation to substantiate its position, includ-
ing in the face of its opponent’s rejection thereof . . . .
Forfeiture here is hardly “unfair” to Mingo Logan but,
in any event, its minimal proof of its costs—as far as
we can tell—mirrors their de minimis nature. And even
if the EPA could be tagged with the “bait-and-switch”
charge—a proposition we roundly reject—Mingo
Logan’s failure to prove up its costs on review by the
district court should mute its lament. In the end, Mingo
Logan at no point—not before the EPA nor in district
court—made any effort to describe its costs or make an
argument about them. In that light, Mingo Logan can
hardly now complain about unfairness. Moreover, as
we have noted . . . Mingo Logan effectively accepted
the EPA’s position on the relevance of its reliance
costs. It is hardly “unfair” to expect Mingo Logan to
have raised whatever arguments it might have about the
EPA’s position before the EPA itself.124
Thus, Justice Kavanaugh’s attempt to illegally insert cost-
benet analysis into a case could have had disastrous impacts on
many species within the Appalachian ecosystems.125
Justice Kavanaugh Decision in Mingo Logan Coal Co.:
Against Wildlife Species
Carpenters Industrial Council v. Zinke, 854 F.3d 1 (D.C. Cir.
2017) (Opinion by Justice Kavanaugh).
Justice Kavanaugh wrote the majority opinion for this
case, in which the timber industry sued FWS over its designa-
tion of critical habitat for the northern spotted owl in the Pacic
Northwest.126 In 2012, the FWS designated 9.5 million acres of
federal forest lands in California, Oregon, and Washington as
critical habitat for the northern spotted owl under the ESA.127 In
response to the designation, the plaintiff, a forest products man-
ufacturing trade association comprised of companies that source
timber from those forest lands, sued the FWS to challenge the
legality of this critical habitat designation.128 Justice Kavanaugh
opened his decision by stating that, “[w]hen the government
adopts a rule that makes it more difcult to harvest timber from
certain forest lands, lumber companies that obtain timber from
those forest lands may lose a source of timber supply and suffer
economic harm.”129 Justice Kavanaugh further noted that the
displacement of the timber industry in the Pacic Northwest as
a prime economic force has been a “phenomenon occur[ing] in
the Pacic Northwest . . . .”130 Responding to the question of
whether or not the plaintiffs had standing to challenge the FWS
designation of critical habitat, Justice Kavanaugh ruled that the
Council had demonstrated a
[S]ubstantial probability that the critical habitat des-
ignation will cause a decrease in the supply of timber
from the designated forest lands, that Council Members
obtain their timber from those forest lands, and that
Council members will suffer economic harm as a result
of the decrease in the timber supply from those forest
lands.131
Justice Kavanaugh ruled squarely in favor of the timber and
wood products industry and against the conservation and protec-
tion of wildlife.132
Justice Kavanaugh Decision in Carpenters Industrial
Council: Against Wildlife Species
West Virginia v. U.S. Environmental Protection Agency, active
and pending, D.C. Circuit (Case No. 15-1363) (after stay and
remand by U.S Supreme Court).
This ongoing litigation concerns fossil fuel states and indus-
tries against the Obama Clean Power Plan, which seeks to reduce
greenhouse gas (GHG) pollution from utilities under Section
111 of the Clean Air Act.133 At the two-day oral argument before
the D.C. Circuit in September 2016, Justice Kavanaugh asserted
that “[t]he policy is laudable. The earth is warming. Humans
are contributing. I understand the international impact and the
problem of the commons. The pope’s involved. If Congress does
this, they can account for the people who lose their jobs. If we
do this, we can’t.”134 Justice Kavanaugh’s legal position on cli-
mate change is deceitful for several reasons. First, Congress has
already “done this” through the Clean Air Act, which not only
commands that the EPA reduce all air pollutants that are found
to harm human health and public welfare, but also specically
includes the term “climate” as part of what the Agency must
consider as “effects” on public welfare.135 Equally problematic,
10 Sustainable Development Law & Policy
Justice Kavanaugh’s position is at odds with the Supreme
Court’s historic decision in Massachusetts v. U.S. Environmental
Protection Agency,136 where a coalition of states and environ-
mental groups defeated the George W. Bush Administration’s
refusal to regulate GHGs under the Clean Air Act; the Supreme
Court squarely held that the EPA does have such authority and
must utilize it.137 Finally, as it relates to the power of Congress,
Justice Kavanaugh has unequivocally and repeatedly attacked
Congressional attempts to limit the amount of money and the
secrecy of money in federal elections.138
The Clean Power Plan litigation cuts to the heart of a central
legal question to all of environmental and wildlife law: would
Justice Kavanaugh support any meaningful attempt by the EPA
to regulate and limit GHGs, or would he throw his lot behind
President Trump and the small industry handful who still deny
climate change is even a problem? Further, would Justice
Kavanaugh support a repeal or weakening of Massachusetts
v. U.S. Environmental Protection Agency, either by supporting
a repeal or weakening of the carbon dioxide/greenhouse gas
endangerment nding(s) or by judicially effectuating or bless-
ing agency inaction on any meaningful regulatory response to
an endangerment nding.139 Thousands of plant and animal spe-
cies, on land and in water, are at grave risk because of global
warming and climate change.140
Justice Kavanaugh position in West Virginia: Against
Wildlife Species.
V. THE FUTURE FOR WILDLIFE
UNDER KAVANAUGH
While it is undeniably typical for most long-standing federal
judges to rule for and against certain interests based upon the
facts and law of a particular case, as well as the specic proce-
dural history of the case, it is nonetheless unusual for a judge on
the federal bench to rule consistently against one set of interests
over another. Justice Kavanaugh regularly and routinely decided
in favor of corporate and industrial interests over the “public
interest.”141 As it relates to wildlife species cases specically,
Justice Kavanaugh’s meager four percent favorable decision
record on behalf of wildlife “species” is alarming.
Justice Kavanaugh is a man who apparently has already
made up his mind. He frequently stretches statutes to comport
with his own personal policy view of the world. Ninety-six per-
cent of the time, Mother Earth loses under Justice Kavanaugh.
Again, Justice Kavanaugh’s paltry four percent pro-wildlife
record is far outside the judicial mainstream as compared to
a conservative (Judge Sentelle with a forty-three percent pro-
wildlife record) and a moderate (Garland with fty-six percent
pro-wildlife record) judge.
In the summer and autumn of 2018, a rational defender
of wildlife conservation could have concluded that possessing
only eight Justices for a few extra months might have served
the Court, and the country, better in the long run.142 At the very
least, no nal vote should have occurred in the Senate until all of
Justice Kavanaugh’s governmental records were released to the
public. 143 The stakes are now too high for the Supreme Court’s
deciding vote to be driven by party allegiance. We need a truly
independent and fair jurist on the Supreme Court at this pivotal
point in the country’s history. How many other Trump appoin-
tees are like Justice Kavanaugh?144
VI. CONCLUSION
Unless he resigns or is impeached, Justice Kavanaugh will
have a lasting impact on the U.S. Supreme Court and the laws
of our country. From wildlife’s perspective, Justice Kavanaugh
possesses the angry hand, the one that writes hostile decision
after hostile decision against the public’s unique interest in wild-
life. The dusky gopher frogs in Weyerhaeuser Company v. U.S.
Fish and Wildlife Service are certainly happy Mr. Kavanaugh
was still a judge when that case was heard before the high court.
Only a change of heart by the Justice himself will ensure future
justice for wildlife in the United States.145
enDnoteS
1 See Seung Min Kim & John Wagner, Kavanaugh sworn in as Supreme
Court justice after divided Senate votes for conrmation, waSh. poSt (Oct.
10, 2018), https://www.washingtonpost.com/politics/kavanaugh-vote-divided-
senate-poised-to-conrm-trumps-nominee/2018/10/06/64bf69fa-c969-11e8-
b2b5-79270f9cce17_story.html?utm_term=.c3e6df30c49c.
2 Current Members, Supreme court, https://www.supremecourt.gov/about/
biographies.aspx (last visited Nov. 26, 2018).
3 Letter from Alaska Wilderness League et al. on Opposing the Supreme
Court Nomination of Judge Brett Kavanaugh to Chuck Grassley et al., Chair-
man, Senate Judicial Comm. (Aug. 10, 2018), https://www.cleanwateraction.
org/sites/default/les/docs/publications/Oppose%20Judge%20Kavanaugh%20
Environmental%20Community%20letter%208-10-18.pdf.
4 Pierson v. Post, 3 Cai. R. 175, 175 (1805).
5 The fraction is explained by two “split” decisions.
6 See infra Appendix A.
7 See infra Appendix B.
8 The author used Bloomberg Law to complete this search. See bloomberg
law, https://www.bna.com/bloomberglaw/ (last visited Dec. 20, 2018).
9 Id.
10 See infra Part III.
11 See Edward E. Shea, Environmental Law of the United States, comp.
envtl. law & reg. § 56:1 (Nicholas A. Robinson et al. eds., 2018).
12 See id.; see also Hughes v. Oklahoma, 441 U.S. 322, 324 (1979) (discuss-
ing state governments’ trustee role in protecting wildlife not otherwise pro-
tected by the federal government); Lacoste v. Dep’t of Conservation, 263 U.S.
186, 187 (1924) (discussing state ownership of wild animals within that state’s
territory).
13 The original Lacey Act, amended several times subsequently, was written
to prevent wildlife taken in violation of one state’s laws to be taken to another
state. 16 U.S.C. §§ 3371-78 (2012); see also 1934 Fish and Wildlife Conserva-
tion Act, 16 U.S.C. §§ 661-667(c) (2012) (requiring the federal government to
minimize and mitigate the adverse impacts upon wildlife from federal projects).
14 Endangered Species Act, 16 U.S.C. §§ 1531-1544 [hereinafter ESA].
15 See Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1421(h) [here-
inafter MMPA] (emphasizing that marine mammals should be protected, and
the primary objective should be to maintain the health and stability of marine
ecosystems).
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