Garland and Kavanaugh on opposite sides:
EPA mercury standards
In the 2014 case White Stallion Energy Center LLC et al. v. EPA, Garland and Kavanaugh sat on a panel of three judges deciding the legality of EPA's decision to regulate mercury and other toxic air emissions from power plants. Garland joined the majority opinion upholding the rule, while Kavanaugh penned a dissent arguing that EPA should have considered costs when deciding whether to regulate the industry.
"To be sure, EPA could conclude that the benefits outweigh the costs," Kavanaugh wrote. "But the problem here is that EPA did not even consider the costs. And the costs are huge, about $9.6 billion a year — that's billion with a b — by EPA's own calculation."
In a 5-4 ruling, the Supreme Court agreed with Kavanaugh and sent the rule back to EPA.
Greenhouse gas rules
In 2012, the D.C. Circuit received petitions to rehear its decision upholding a suite of Obama EPA greenhouse gas regulations in the massive case Coalition for Responsible Regulation Inc. v. EPA. The full court — Garland included — denied rehearing, but Kavanaugh was one of two judges who dissented, raising doubts about EPA's authority to require stationary pollution sources to obtain permits for greenhouse gases under the Clean Air Act. He wrote that the agency's reading of the law led to "absurd results" and had "major" practical consequences.
The Supreme Court later unanimously ruled that EPA can't require permits under the Clean Air Act's Prevention of Significant Deterioration program solely for greenhouse gases.
EPA methane rule
Last year, the full D.C. Circuit denied states' and industry groups' request to reconsider an earlier decision striking down then-EPA Administrator Scott Pruitt's delay of methane standards for new oil and gas operations. Kavanaugh was one of three appointees of Republican presidents who would have reconsidered the case. The D.C. Circuit's July 2017 decision in Clean Air Council v. Pruitt was among the first of a number of legal defeats for the Trump administration as it attempts to roll back Obama-era environmental rules.
Yucca Mountain
In 2013, a split three-judge panel of the D.C. Circuit ordered the Nuclear Regulatory Commission to continue its review of the Energy Department's application to build a nuclear waste repository under Nevada's Yucca Mountain, despite the Obama administration's desire to abandon the proposal. Kavanaugh wrote for the majority that NRC was "simply flouting the law" by halting the consideration of the project.
The case featured a rare Garland dissent. He argued that Congress had not appropriated enough money for the NRC to make any progress and that courts should not issue a writ of mandamus "to do a useless thing."
Death of SeaWorld trainer
In 2014, Garland joined a panel opinion rejecting SeaWorld's challenge to the Labor Department's finding that it violated workplace safety laws by exposing trainers at its park to killer whales with a history of violence. The case stemmed from the 2010 death of Dawn Brancheau, a 40-year-old trainer at SeaWorld's Orlando park who was dragged into the pool by Tilikum, a 12,000-pound bull orca, during a performance. Kavanaugh dissented, largely adopting SeaWorld's argument that the Labor Department had impermissibly regulated sport.
"Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus," Kavanaugh wrote. "But the participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury."
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