President Obama’s nomination of Elena Kagan to replace Justice John Paul Stevens has generated the usual questions from both sides the political spectrum, often raising more questions than answers. Kagan’s views on environmental issues will be particularly important, because as the government acts to increasingly regulate greenhouse gas emissions and institute cap-and-trade programs in the coming years, legal challenges to such issues will reach the Supreme Court with increasing frequency. As far as her stance on these issues is concerned, Kagan hasn’t expressed a clear view in favor of upholding environmental regulation, but her actions as dean of Harvard Law School should give environmentalists hope.
During her nearly six years as dean, Kagan brought Harvard’s Environmental Law program from relative obscurity to its current position as one of the best in the country. She started the school’s environmental law program in 2005, and created its environmental law clinic. In what was seen as one of the most prominent hires of her time as dean, Kagan persuaded Jody Freeman, an expert on environmental policy who served as the White House Counselor for Energy and Climate Change, to leave UCLA in order to head the program. While these actions don’t give a clear answer to how Kagan would decide important environmental issues, they do show at least a general support of environmental protection.
Kagan further showed her understanding of environmental issues in a letter in the summer 2008 Harvard Law Bulletin. In the letter she spoke favorably of moving past litigation to an interdisciplinary approach to combat what she called “the growing perils posed by greenhouse gas emissions and global climate change.” This way of thinking could hopefully turn into support for a broad range of measures to regulate greenhouse gas emissions.
Although Elena Kagan is undoubtedly not an outspoken advocate for environmental protection, her limited record should at least provide a sense of optimism. She seems to understand the importance of climate change regulation to the future of our country, and her moderate approach to the issue could help gather the five votes needed to sustain any environmental regulation that reaches the Supreme Court.
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Kagan may or may not prove to be a strong vote for environmental values, but I am not persuaded that her efforts to improve the environmental curriculum at Harvard tell us much about how her sentiments. The real story is that, with the possible exception of William O. Douglas who left the Court in 1975, we have never had an environmental justice. Bill Clinton gave serious thought to appointing Bruce Babbitt rather than Stephen Breyer in 1994, but ironically, it was the environmental groups who lobbied against that choice because of concerns about who might replace Babbitt at Interior. I hope Kagan turns out to be a great friend of the environment, but I hope some day to see a person appointed Supreme Court justice whose passion is to protect the planet. Kagan is not that person.
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