Back in 2012 when President Trump’s Supreme Court nominee sat on the U.S. Court of Appeals for the District of Columbia Circuit, Judge Brett Kavanaugh voted to toss out rules that required states to control air pollution that floated across their borders to states nearby – a regulation the Environmental Protection Agency then estimated worked to prevent 13,000 and 34,000 premature deaths each year.
> These rules were first ordered up by Congress back in 1970, have been more than 20 years in the making and had already been the subject of two challenges before the D.C. Circuit.
> According to estimates by the Environmental Protection Agency, these regulations would prevent between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year. The projected annual compliance cost is $2.4 billion, compared with the annual health benefits of anywhere from $120 billion to $280 billion.
Despite having no expertise in the area of air pollution and without considering the lengthy history or varied contexts associated with the regulations, Kavanaugh gave two reasons for throwing out the rules:
> The first is that the agency had required states to come up with implementation plans for curbing cross-border pollution before it gave them the yardsticks necessary to evaluate such plans, as required by the law. The only problem is that the Clean Air Act makes no mention of such yardsticks or any obligation on the part of the EPA to provide them. Indeed, the only reason the EPA even came up with those yardsticks is that it needed them to design a federal implementation plan after 26 states failed to meet the statutory deadline for coming up with credible plans. This alleged violation of cooperative federalism turns out to be a figment of Kavanaugh’s imagination.
> Kavanaugh’s other grounds for blocking the regulations is that they might someday require some state to eliminate more interstate pollution than it produces. I won’t bore you with the tortured logic that led Kavanaugh to this conclusion other than to point out that, in 60 pages, he wasn’t able to cite a fact or a study or even an example of a single state where this over-regulation was likely to result. As it happens, the EPA had looked into that possibility and concluded that it would be “extremely unlikely.”