WHAT DOES BRETT KAVANAUGH HAVE TO DO WITH ZERO WASTE?
In case you have not read or heard enough about Brett Kavanagh
By John D. Moore, NCRA Vice President and Legal Counsel
Before being nominated to the Supreme Court, Brett Kavanagh was a judge of the US Court of Appeals for the DC Circuit. This Court frequently is asked to decide issues involving federal agencies, like EPA. EPA has extensive rules and regulations defining what is “recycling” or “recyclable” as distinct from solid waste. Hazardous waste is simply a subset of solid waste. EPA’s definitions have been used by other Courts in a variety of circumstances. Trust me that these regulations are difficult to follow with exceptions, exceptions to the exceptions, and tables purporting to summarize all these rules that are found in at least 10 places. On the other hand, “Solid waste” has never been defined by the Supreme Court notwithstanding that the Court has long declared solid waste to be an article of commerce for purposes of applying the Commerce Clause of the Constitution to local government actions involving flow control. Since Judge Kavanagh may have opportunity to shape the definitions of recycling and solid was a member of the Supreme Court, it is worth looking at Court decisions he has participated in which EPA’s definitions were challenged. EPA’s remit under the federal Resource Conservation and Recovery Act (RCRA) is to regulate landfill standards and to regulate disposal of hazardous waste. When a collector wants to salvage recyclable material from a hazardous item of waste, such as a foundry sand containing lead, this intersects with EPA’s regulatory oversight. For this purpose EPA has tried to distinguish and define “sham recycling.”
A lot of EPA’s rules were challenged by Industry Groups and the Sierra Club. Judge Kavanagh concurred in the majority (2-1) opinion. It really isn’t possible to summarize this case with any brevity since there were several discreet issues in interpreting interlocking regulations with extensive legislative and regulatory history found in the Federal Register. This cannot be quickly outlined. But there were two aspects of this opinion, API v. EPA 862 F.3d 50 (DC Cir 2017), that I thought reflected on Judge Kavanagh’s suitability to serve on the Supreme Court. One, the majority was able to comprehend an enormous regulatory scheme; and 2) the opinion reflects an understanding that RCRA and EPA regulations are not aimed at “materials that otherwise would become solid waste.”
This first impression relates to “qualification” to serve on the Supreme Court. As we have seen, these “qualifications” are not defined or even commonly understood, let alone uniformly applied. It’s a little like voting for the MVP in professional sport; it’s in the eye of the beholder and reflects the values of the beholder. I have observed in law practice a similar definitional problem. In child custody disputes, the overriding concern is the “best interests of the child.” And who could argue with that? But divorcing parents often have dissimilar views of what this means and their view is often colored by their perception of the other contestant for custody. In a no-fault divorce state like California there is no forum for a divorcing spouse to say why the other spouse is so bad. So that need for emotional outlet gets transferred unfortunately onto a fight over what is best for the child; with ugly results. You could make a good case that the framers of the Constitution intended that the selection of a Supreme Court justice with the “advise and consent of the Senate” be a political process and that the political party with the majority power got to use its own interpretation of qualifications for the office. And if the Senate majority decides that a past sexual assault and lying to the Senate were not disqualifiers, the framers would say “so be it”.
If one likes Judge Kavanagh’s views about distinguishing solid waste from recyclable and that “like” satisfies the “qualification” requirement, this is using a political view to make a political decision. And just like tribal societies in Central Asia, history is a cycle of those who are in and those who are out and where those that are in take what they want without regard to the overall health of the nation. I am sure that the framers did not intend this to happen. Many writers have opined how our country got to this state but few propose a solution to return to democracy and polite discourse in favor of the best interests of the country. When our leaders behave like spoiled children they are not acting in the best interests of the country.
Politics works in different and strange ways. Most blue state voters would agree that Earl Warren was among our greatest Supreme Court justices. But his appointment, having a very California flavor, was as political as any. There were 3 prominent Republican politicians who coveted the Presidency in the early 1950s. One was Warren, a popular 3 term Governor of California (and former Alameda County District Attorney who sought the death penalty), Senator William Knowland of Oakland (and owner of the Tribune then) who was the Senate Majority leader (the Mitch McConnell position) and Vice-President Richard Nixon of Whittier. The popular version of this story is that Knowland and Nixon went to President Eisenhower and asked that Warren be made Chief Justice to get him out of California politics. Many Republicans came to regret that choice and campaigned in the 1960s to have Warren impeached. Through this terribly political process came the one Justice with the skill to insist that Brown v. Board of Education end racial segregation and that the Court so rule unanimously to preempt any question of its legitimacy. Another Justice on that Court was Hugo Black of Mississippi who was a member of the Ku Klux Klan at the same age that Judge Kavanagh was throwing down brewskis. If either Warren or Black’s confirmation hearing resulted in them yelling about Democratic party conspiracies, I am not aware of it and seems unlikely given their temperament.
It’s a scary time. Foreign countries may be influencing our elections by subterfuge, questioning what information and which news broadcaster can you trust. Or maybe they haven’t been and that is part of the subterfuge. And who has the skill to figure that out? This country has weathered many crises. It should have the resilience to withstand Donald Trump and Brett Kavanagh. But maybe Kavanagh will surprise like Earl Warren did. You may not want to see either politics or sausage being made but you can hope the output is palatable.
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