Elena Kagan, climate realist
Photo: White House / Lawrence Jackson
Here’s the dirt on Earth-hating Supreme Court nominee Elena Kagan: On more than one occasion she was so consumed by her work that she accidentally left her car running overnight, a longtime “friend” told the New York Times.
But it’s worth looking beyond this personal eco-foul to examine Kagan’s broader record on environmental and climate issues.
It’s immediately clear that she’s no fire-breathing environmental crusader in the Robert F. Kennedy Jr. mold. Those looking for such a justice are bound to be disappointed. Kagan hasn’t written or said much at all about climate change or the government’s role in regulating clean air and water or protecting land and species. This fits with a broader critique from the left that she hasn’t left a record on anything that reveals her judicial philosophy.
But if actions mean more than words, Kagan’s nomination could be good news for the environmental movement. Kagan’s signature green accomplishments came during her six years as dean of Harvard Law School, from 2003 to 2009, where she led the creation of an Environmental Law Program and an Environmental Law and Policy Clinic.
“The fact that she was interested in building an environmental law program when none existed, I think, speaks volumes,” said Jody Freeman, an environmental policy and regulation scholar whom Kagan lured from UCLA to Harvard, one of the most high-profile hires of Kagan’s tenure.
“Harvard, when she became dean, was pretty much seen as a kind of a backwater” on environmental law, said John Leshy, an environmental law scholar at the University of California Hastings College of the Law. “There was a lot of student interest on environmental issues, but the faculty and the curriculum didn’t really reflect that. [The program] came from nowhere and became a respected program. I give her a lot of credit for that.”
The clinic put law students to work on current cases, including a challenge against two coal-fired power plants by the Kansas secretary of health and environment. It was the first time a state had opposed a fossil-fuel project on the grounds of carbon dioxide emissions. Kagan indicated her support for the work in a letter in the summer 2008 Harvard Law Bulletin (PDF), one of her few public statements on climate issues.
“I hope you’ll share my pride in the work that students, faculty and alumni are doing to tackle the environmental dangers we all face-and my determination that Harvard Law School continue to make a difference in this vital sphere of law and policy,” she wrote.
The environmental program, which launched in 2005, wasn’t Kagan’s sole focus, said Freeman, but it suggested she grasped the importance of legal issues surrounding climate change. “I think she understood the moment in environmental law,” said Freeman. “It was a tremendous growth period. Climate was just becoming really mainstream and energy was becoming hugely important. She understood it was a moment when Harvard could have an impact.”
Even more important, said Freeman, Kagan understood the need for environmental law to move beyond the adversarial litigation that the field has relied on for much of the past 40 years. The environmental law program and clinic focused on teaching students about executive-branch rulemaking, land acquisition, and permitting for projects like coal plants.
“We needed to give students a chance to work on environmental, energy, climate issues in a way that went beyond just doing litigation. [Kagan] understood the need for a more expansive approach,” said Freeman, who recently returned to Harvard Law School after spending a year advising White House climate czar Carol Browner.
Kagan’s background in administrative law–how government agencies write and enact rules–let her see the importance of this approach, said Freeman. It could also make her an effective environmental advocate on the Court, because environmental cases often overlap with administrative law.
“She knows how the bureaucracy works, and that’s important,” said Leshy.
Kagan also spent time working for the Senate Judiciary Committee under then-Sen. Joe Biden, as counsel in the Clinton White House, and, for the past year, as solicitor general, representing the federal government before the Supreme Court. None of this work was explicitly environmental, but environmental law scholars tend to see the experience as an asset.
“She has an in-depth knowledge of the nuts and bolts of how issues work in the real world,” said Glenn Sugameli, an attorney at Defenders of Wildlife and founder of Judging the Environment, which monitors federal courts. “That’s important because, if you look at the current court, they’re almost all lifetime ‘judicial monastery’ types. They’re so used to looking at things from a judge’s standpoint that they don’t really understand them.”
Then there’s the simple matter of Kagan’s age. At 50, she is likely to see more effects of climate change than older colleagues will. “I think it is very important to have somebody with a generational stake in this issue,” said Leshy, 65. “People my age and older are not going to see the [outcomes of] problems we’re dealing with now. People who are younger will see them.”
Temperamentally, Kagan is by most reports exactly the kind of person President Obama likes to promote-collaborative, pragmatic, more interested in results than fights over principle. She’s credited with uniting factions at Harvard Law School and taming its famously venomous “snake pit” atmosphere.
Sen. Charles Schumer (D-N.Y.) and others have argued that an intellectually respected collaborator would be more effective on the court than an arch-liberal. “I’d like the new nominee to be one of five, not one of four, when the votes come up, and somebody who would be quite persuasive in terms of influencing other justices, I guess particularly Justice [Anthony] Kennedy, to his or her point of view,” said Schumer. “And that would matter to me more than any particular ideology.”
Kagan has worried some court-watchers with her somewhat broad interpretation of executive power — laid out in a 2001 Harvard Law Review article — but that perspective could be positive from an environmental standpoint if the executive branch is more willing than Congress to act on climate change. Plans to regulate greenhouse gas emissions — either by Congress or by the EPA — will face legal challenges and could end up before the Supreme Court. A justice who believes the EPA should have leeway in enacting such rules is more likely to uphold a climate plan.
Kagan’s supporters in the climate-law field believe she is such a justice.
“Based on her article and record, she should be OK on that,” Leshy said.