A Supreme Court nominee for the global warming century: Elena Kagan

Obama’s Supreme Court nominee, Elena Kagan, “has a reputation as a supporter of environmental law and as a lawyer who takes climate change seriously,” notes Green Energy Reporter.

“She left a nationally visible mark on environmental law at Harvard,” said Jim Rossi, an environmental law professor quoted in a March 2009 NYT/Greenwire piece on Kagan after she was confirmed as solicitor general.  “For many years, Harvard was not known for a primary expertise in the environmental jurisprudence, and that changed under Dean Kagan’s watch.”

Global warming is the issue of the decade and of the century.  Ultimately, assuming the anti-science, pro-pollution crowd continues to succeed in its policy of obfuscation and delay, then catastrophic human-caused climate change will come to dominate many aspects of life in this country.  So there can be little doubt that the Supreme Court will see its share of cases.

GER adds:

Kagan’s view on climate change and environmental law are particularly important since we will likely see legal challenges to cap-and-trade or the EPA’s economy wide attempt to regulate carbon emissions that pass in the coming years.

The interstate commerce clause, which has provided the constitutional grounding for environmental regulation, will get a workout in the coming years and we know that Chief Justice John Roberts and the conservative members of the court feel that regulation on that basis has been stretched past its limit.

She made several prominent hires, including Jody Freeman, an expert on environmental policy who served as an counselor to Climate Czar Carol Browner until March.

In a 2008 column in the Harvard Law Bulletin, Kagan wrote:

Until fairly recently, environmental legal practice was built mainly on litigation, but today””largely because of the growing perils posed by greenhouse gas emissions and global climate change””the field is expanding well beyond that model. For this reason, HLS students are learning to tackle environmental issues in new ways””through team-based problem-solving built on solid grounding in statutory, regulatory, and international law and making use of interdisciplinary approaches that bring science, economics and other academic perspectives to bear. (If these strategies sound familiar, they should””they are also central to our recent comprehensive curriculum reforms.)

At the heart of our environmental program is our new environmental clinic. Under the guidance of the terrifically accomplished Wendy Jacobs ’81″”one of our newest clinical professors””HLS students are involved in a growing array of placements that give them a chance to effect change in the real world. For example, some have been helping the Kansas secretary of health and environment fend off a legal challenge to his denial of a permit for a coal-fired plant””the first such denial based on reasons of climate change. Others are focused on ways of encouraging investors to make environmentally conscious investment choices. And, some have gotten involved in the nitty-gritty of advocacy before the EPA and other federal and state agencies.

Kagan thus looks to be an important and highly knowledgeable addition to the court in what will become one of its most important activities in the coming decades — adjudicating on the subject of the environment in general and climate change in particular.

7 Responses to A Supreme Court nominee for the global warming century: Elena Kagan

  1. For a good discussion of how the conservative Supreme Court has threatened environmental regulation see below a 2005 piece from The Atlantic. The judge who wrote mockingly of “the hapless toad”? None other than Chief Justice John Roberts.

  2. SecularAnimist says:

    Joe wrote: “… assuming the anti-science crowd continues to succeed in its policy of obfuscation and delay …”

    The thing is, it’s not the “anti-science crowd”.

    It’s the “put corporate power and profits above the public interest crowd”. The “anti-science” stuff is just a means to an end. The same phony “ideologues” would be cheerleaders for science if that happened to be in the interest of the corporations they serve.

    The current Supreme Court — certainly its so-called “conservative” majority — has steadfastly ruled to put corporate power and profits above the public interest.

    So the question is, what is Kagan’s track record on that score?

    [JR: Fixed!]

  3. Roger says:

    I agree with Jeff, who has never been quite so succinct!

    Joe, Susan and I had just settled ourseves in to listen to you on NPR, hopeful that Obama’s naming a Supreme Court nominee wouldn’t REALLY bump you and others from talking about oil, energy and CC.

    You’d think that after a day of non-stop commentary about Obama, Kagen, Harvard and etc., we could switch back to talking about how we might slow our relentless, zombie-like, collective movement towards embroilment-laced mass suicide.

    But oh, noooo!

    It’s sad.


  4. Environmental Law will of course become the mainstay of our nation’s economic foundation over the near as well as far future. As virtually all aspects of industrial growth in our 21st century will be benchmarked by an enlightened sense of environmental stewardship coupled to an equally enlightened sense of economic growth, selecting a Supreme Court nominee that is intimately aware of this “whole enviro-economic framework” is crucial.

    As once it was the role of the EPA to educate the nation on environmental sustainability and in doing so enforce certain rules as those rules applied to certain industries, today the EPA must be considered in every aspect of its functioning as crucial to our nation’s whole socio-economic dialog. Not so much in a regulatory sense as in a much larger and much more dynamic common sense, the EPA should exist in virtually every corner of every American life for the singular purpose of assuring a comprehensive awareness of the fact that everything manufactured in our nation today is done so with a total eye on whole nationwide, life cycle awareness.

    As that awareness includes environmental health inside of one’s home, it does as well include job security. As that awareness includes full community participation, it does as well include seamless integration of a multitude of industrial functions that continuously maintain that communities economic health.

    Nothing that the Supreme Court will find itself confronted with over the course of our entire 21st century will be devoid of such overarching awareness and responsibility.

  5. Chris Dudley says:

    I took me a while to parse her statement. I think she must be talking about job opportunities in environmental law. She is saying that mainly you had to be a litigator in the past I think, but now there are other more bureaucratic or adjunct or diplomatic positions as well. We’ve had EPA lawyers for a while and they mostly try to make sure that litigation won’t happen in the first place. But, perhaps there is a shift in the employment scene.

  6. mike roddy says:

    Kagan’s environmental ideas look encouraging, but I’m troubled by her opinions about executive power, torture, and rendition. Without possessing basic humanity in all areas- further exemplified by her willingness to play ball with far right zealots- Kagan’s environmental decisions are going to have hair on them.