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.
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.