What would Brett Kavanaugh’s confirmation to the US Supreme Court mean for the Arctic?

Supreme Court nominee Brett Kavanaugh has been criticized for his stance on native rights. Where does he stand on other Arctic issues?

By Melody Schreiber - September 25, 2018
Supreme Court nominee Brett Kavanaugh testifies during the third day of his confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, U.S., September 6, 2018. (Alex Wroblewski / Reuters File Photo)

When it comes to the Supreme Court confirmation of Brett Kavanaugh, the decision may come down to senators Susan Collins and Lisa Murkowski.

Earlier this month, the pressure on Sen. Murkowski to reject Kavanaugh’s nomination intensified, when the Alaska Federation of Natives — the largest native organization in Alaska and a big supporter of Murkowski’s political campaign — highlighted concerns about the potential justice’s stance on native rights.

And last week, Murkowski said she was waiting to make a decision on Kavanaugh’s fitness for office after Dr. Christine Blasey Ford accused the judge of sexually assaulting her in high school.

Both Murkowski and Sen. Dan Sullivan — who had previously supported Kavanaugh’s nomination — expressed concerns about the allegations.

“Allegations surrounding sexual assault must be taken seriously,” Murkowski said in a recent statement. “Dr. Ford’s allegations should be heard and she must have an opportunity to present her story.”

Still, Kavanaugh has the support of most Senate Republicans, and could soon be confirmed. What would his confirmation mean for Arctic issues?

Environmental issues

Justice Anthony Kennedy, who is retiring, was a well-known swing vote on environmental issues. But Kavanaugh may not be.

Because Kavanaugh comes from the D.C. Circuit Court, he has a long record on environmental issues, especially concerning the Environmental Protection Agency (EPA).

Perhaps surprisingly, Kavanaugh does acknowledge the role of humans in climate change.

“The earth is warming. Humans are contributing,” he said in a 2016 hearing on the Clean Air Act — a major climate change initiative from the Obama administration. “There is a moral imperative. There is a huge policy imperative.”

“The task of dealing with global warming is urgent and important at the national and international level,” he wrote in 2013.

However, Kavanaugh doesn’t believe Congress has endowed federal agencies with wide-ranging mandates to address the changes.

Indeed, Congress has not passed a major environmental law since 1990, when the Clean Air Act got a makeover. In the absence of major Congressional legislation on these issues, federal agencies have had some leeway in how they address environmental issues.

But in the view of conservative judges like Kavanaugh, agencies are overreaching; their power should come solely from Congressional mandates. He thus has a record of limiting agencies like the EPA in their efforts to address climate change and limit greenhouse gas emissions.

Natural resource extraction

In the 2016 case on the Clean Power Plan, Kavanaugh argued the legislation placed too large a burden on energy companies.

“It’s fundamentally transforming an industry,” he said, because the companies would have to pay what he called “a huge financial penalty in order to continue to exist, in order to shift from coal plants to solar and wind plants, at the same time the coal mining industry is in essence greatly harmed, as well.”

The Wilderness Society, a conservation agency, argues that Kavanaugh’s support for executive power would further enable the Trump administration’s push to open up public lands — including in the Arctic — to oil and gas drilling.

And Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, believes that Kavanaugh might rule against communities seeking to hold oil companies liable for climate-change damage.

Endangered species 

In October, the Supreme Court will hear a case on the Endangered Species Act. Weyerhaeuser v. U.S. Fish and Wildlife Service is a challenge to the federal decision to designate land in Louisiana as a habitat for the dusky gopher frog.

Advocates argue that the decisions will not just about this one case — it will reflect on the U.S. Fish and Wildlife Service’s ability to use the best science available to enact and enforce policy.

Given Kavanaugh’s history of narrowly reading the law on federal agencies’ ability to make such policies, it’s possible he would support the challenge to the law. Furthermore, in more than a decade on the D.C. Circuit Court, he has ruled against the protection of species 95 percent of the time.

Native rights

And, of course, there’s the issue of Alaska Native rights.

The AFN issued an extensive statement “strongly opposing” Kavanaugh’s confirmation, detailing concerns with Kavanaugh’s record on Native rights, from the Indian Commerce Clause to the federal government’s relationship with tribes — including his stance on the rights of Hawaiian Natives, which surfaced during his confirmation hearing.

“The result would be a wholesale reshaping of the body of law and policy that has governed Indian affairs for the past century and a half,” AFN said.

The Alaska Federation of Natives represents more than 20 percent of Alaska’s entire population, and the organization supported Murkowski’s campaign when she unexpectedly lost the primary to a Republican challenger and ended up winning as an independent.

Murkowski has said that she met with Kavanaugh to go over each concern the AFN raised, and she’s satisfied with his stance toward Alaska natives.

Prior to the AFN statement on Kavanaugh’s tribal stance, Alaska Natives also pressed Murkowski to reject Kavanaugh’s confirmation because of his record on climate change, voting rights, health care and subsistence fishing rights.

“This would be a death knell to us in Alaska, absolutely,” said Heather Kendall-Miller, an Alaska Native and a lawyer for the Native American Rights Fund.

Richard Chalyee Éesh Peterson, president of the Tlingit and Haida council, also urged Senator Murkowski to vote against Kavanaugh’s nomination in a statement. And some Alaskans even traveled to DC to protest Kavanaugh’s nomination in person.

In addition, the Alaska House Bush Caucus — state legislators who focus on tribal and rural representation — asked Murkowski and Sullivan to vote no.

“What I am seeking is a Supreme Court Justice with the character, the intelligence, and the balance to impartially apply the law to the facts of the case,” Murkowski said in her statement after first meeting with Kavanaugh last month.

Whether he will pass muster on those points remains to be seen.