In the United States, the judiciary is in a key position to shape federal legislation, including climate and energy policy. As the highest judicial authority, the Supreme Court is a particularly prominent actor. For example, if the Senate fails to enact new climate legislation, the Environmental Protection Agency’s regulatory authority, as prescribed by the Clean Air Act, is potentially vulnerable to legal challenges by polluters. For effective climate policy, it is essential that the Supreme Court defends the interpretation that the Clean Air Act mandates reductions in carbon dioxide emissions.
On May 10, President Obama nominated Ms. Elena Kagan, currently the Solicitor General of the United States, to replace Justice John Stevens in the Supreme Court. Although it is already late here in New York, I thought it might be useful to see how various environmental groups have responded to the nomination.
It seems to me that the general impression is cautiously favorable. Already in 2009, when Ms. Kagan was confirmed as the Solicitor General by the Senate, Greenwire noted that she has a lot of experience with administrative law — a critical element of environmental regulation. What is more, as the Dean of the Harvard Law School, 2003-2009, she made the school a powerhouse of environmental law. Thus, the Green Energy Reporter reports that while “these tidbits are all we have to go on to divine Kagan’s environmental record right now … it’s a promising one.”
Similarly, Jonathan Hiskes writes for Grist that while Ms. Kagan would not be an activist Supreme Court judge in regards to the environment, her experience with administrative law give reasons to expect that she will be favorable to environmental regulation and effective in arguing for it in the Supreme Court. At Climate Progress, Joe Romm also writes that Ms. Kagan will 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.”
In sum, it seems that environmental advocates agree that Ms. Kagan is a good choice for the Supreme Court. But all this remains to be seen, as the highly independent position of the Supreme Court gives the judges much room to set their own priorities and choose among different approaches.