Elena Kagan has been pegged as a boring, strategic Supreme Court pick, one whose bland background in administrative law and studious avoidance of hot-button constitutional issues makes her a highly confirmable nominee. But these very qualities may make her an environmental advocate along the lines of the justice she would be replacing -- one whose judicial restraint and faith in regulation drove the Court's most significant environmental decisions over the past 35 years.
Justice John Paul Stevens mastered the art of protecting the environment not by engaging in judicial activism but by combating it. During the early throes of the environmental movement, writes Doug Kendall, president of the Constitutional Accountability Center, Stevens "rejected the idea that environmentalism was some sort of transcendental force that gave judges special powers to enforce broad statutory goals on their own and overrule regulatory agencies." He thought laws and regulators, when correctly interpreted and respected, were the appropriate vehicles for environmental protection. It was this philosophy that prompted the Court to bolster the Endangered Species Act in Babbitt v. Sweet Home and to empower the EPA to regulate greenhouse gas pollution in Massachusetts v. EPA.
The latter case involved environmental advocates suing the very agency that was supposed to advance their goals. Massachusetts v. EPA exemplifies the current state of environmental protection, which, in the absence of market-based climate legislation, is entrusted to a bureaucratic maze of agencies and regulations. Arguing that the Constitution provides for environmental protection is all well and good, but many of today's most important environmental issues are being fought on complicated regulatory grounds.
This is where Elena Kagan's background sets her up as a potential environmental advocate. Her academic focus on administrative law reveals a faith in regulation similar to Stevens', and her experience in all three branches of government has granted her an intimate understanding of how they intersect.
Today's environmental lawyers are reacting to Congress' climate bill paralysis by envisioning ways the Clean Air Act -- or even the Clean Water Act
-- could mandate a cap-and-trade system. When she was dean of Harvard
Law School, these were the kinds of lawyers Elena Kagan wanted to
produce. She spearheaded the school's first environmental law program and clinic, engaging students in key regulatory fights across the country. In a 2008 letter in the Harvard Law Bulletin, Kagan laid out the pragmatic environmental training she sought to provide her students:
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.
No matter what kind of climate bill Congress passes, legal challenges will surely ensue. If the bill includes a cap-and-trade plan, industry groups could sue regarding timing and carbon credit distribution. If it prevents states from participating in regional cap-and-trade plans, members of the Northeast's Regional Greenhouse Gas Initiative could launch their own attack on the federal government. If it includes incentives for offshore drilling, states could vie for cuts of the revenue. And within the past month, more than 70 suits have already been filed in response to the BP oil spill. It is nearly inevitable that some of these environmental cases will make their way to the Supreme Court within the next ten years.
experience with making and enacting laws and her commitment to giving
her students a multi-platform understanding of environmental issues
proves her understanding of the complexity of the current state of
environmental protection. Her leadership in launching Harvard Law
School's environmental program -- and her matter-of-fact reference to
the "growing perils posed by greenhouse gas emissions and global
climate change" -- proves her belief in the urgency and importance of
environmental issues. A combination of these qualities might just yield
an environmental pragmatist Stevens' green supporters could get behind.
This article available online at: