What Might Justice Kavanaugh Mean for the ESA?

On July 9, 2018, President Trump nominated Judge Brett Kavanaugh, who currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, to replace retiring Associate Justice Anthony Kennedy on the U.S. Supreme Court. While much of the public discourse about Judge Kavanaugh’s nomination has focused on hot-button issues like abortion and the Second Amendment, the addition of Justice Kavanaugh to the Supreme Court could also have significant effects on a range of environmental laws and regulations, including the Endangered Species Act (ESA).

One of Judge Kavanaugh’s most well-known environmental opinions is from Otay Mesa Property, L.P. v. Interior, 646 F.3d 914 (D.C. Cir. 2011). In Otay Mesa, the U.S. Fish and Wildlife Service (Service) had observed four endangered San Diego fairy shrimp (Branchinecta sandiegonensis) in one location on a dirt road on the plaintiffs’ 143-acre property. Based on that single observation, the Service designated the plaintiffs’ property as occupied habitat for purposes of its critical habitat designation under the ESA. The D.C. Circuit held that substantial evidence did not support the Service’s designation of critical habitat for the San Diego fairy shrimp. Judge Kavanaugh explained that while the Service may protect areas outside of the geographic range occupied by an ESA-protected species as essential to the species’ conservation, it had instead asserted that this was occupied habitat for the fairy shrimp. Judge Kavanaugh found that a single observation of a species did not provide sufficient evidence that the area was occupied habitat. And while the Service was under no requirement to continue looking for the endangered shrimp, Judge Kavanaugh noted that the lack of such an obligation is not the same as an authorization to act without data to support its conclusions. 646 F.3d at 918. This opinion suggests that Judge Kavanaugh is likely to narrowly interpret the provisions of the ESA.

Similarly, Justice Kavanaugh’s position on Chevron deference may have wide ranging consequences for environmental statutes, including the ESA. Like Justice Neil Gorsuch, Judge Kavanaugh appears to take issue with the broad deference given to agencies under the Chevron doctrine. In a 2017 keynote address to the Notre Dame Law School, Judge Kavanaugh explained his belief that Chevron encourages agency aggressiveness on a large scale, and that [u]nder the guise of [statutory] ambiguity, agencies can stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes.[1] He asserted that this ambiguity trigger in statutory interpretation is one of the two major impediments in current jurisprudence to achieving the vision of the judge as an impartial umpire.

These comments and his writings for the D.C. Circuit suggest that Judge Kavanaugh, if confirmed as an Associate Justice of the U.S. Supreme Court, would look critically at agency actions and determinations under large environmental statutes like the ESA. His confirmation could lead the Supreme Court to narrow or even functionally eliminate the broad deference given to agency determinations under the Chevron doctrine by refocusing analysis on statutory text and removing the ambiguity trigger.

[1] Brett M. Kavanaugh, Keynote Address: Two Challenges for the Judge As Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907, 1919 (2017).

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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