Elena Kagan, who was nominated this morning to fill John Paul Stevens’ U.S. Supreme Court seat, has a reputation as a supporter of environmental law and as a lawyer who takes climate change seriously.
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 in the coming years.
The interstate commerce clause, which has provided the constitutional grounding for environmental regulation, will get a workout as states and various interest groups assail environmental regulations* 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.
(For a wonderful examination of the conservative assault on the commerce clause, see this piece from The Atlantic from a few years ago. Roberts was the judge who wrote about “the hapless toad” mentioned in the piece.)
Thus, Kagan’s views on this subject are very important.
Greenwire ran a piece on Kagan’s environmental record in March of last year when she was facing confirmation as solicitor general noting that she was a supporter of Harvard Law School’s environmental law program when she was dean of the school.
She made several prominent hires, including Jody Freeman, an expert on environmental policy who served as a counselor to Climate Czar Carol Browner until March.
Kagan also wrote approvingly in 2008 in the Harvard Law Bulletin about innovative approaches to environmental legal practice that Harvard law students have employed
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.
One imagines that archconservative, constitutional originalist Justice Antonin Scalia would not take as sympathetic a view toward legal approaches that are grounded in international law http://howfacecare.com/how-to-get-rid-of-toothache-do-it-yourself-initial-care-when-you-cant-take-it-any-longer/.
Kagan also wrote about how students helped the Kansas secretary of health and environment fight a legal challenge to his denial of a coal-fired plant permit for reasons of climate change.
Unfortunately, these tidbits are all we have to go on to divine Kagan’s environmental record right now, but it’s a promising one.
*Edited for clarity